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THE JURIST 68 (2008) 252-297

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 1

CHARLES J. REID, JR.*t

Preface:

Father John Lynch-whom I have known fondly as "Fr. Lynch" for a quarter-century now-was among the earliest influences on my own un- derstanding of what an historian should be about when engaging the records of the past. Certainly, Fr. Lynch taught some valuable lessons about medieval canon law, as anyone who took his Gratian seminar or his course on the sources of canon law, can attest. But he brought to the classroom a pair of attributes that made the lessons he imparted singu- larly compelling. By training a philosopher, he appreciated that, in com- mon with other legal systems, canon law was not a self-contained system of rules that should be studied in isolation from other intellectual cur- rents. Second, he understood the pervasive influence canon law has had on western law generally, secular as well as sacred.

A review of his scholarship, of course, reveals these attributes in abun- dance. His studies on celibacy, the election of bishops, and the early his- tory of the Eastern churches are well known and need no comment. 2 And his history of canonical studies at Catholic University of America is sim- ilarly indispensable. 3 I would like, however, to comment on two of his lesser known, but still very significant articles. In "The Medieval Canon Law on Sanctuary With Particular Reference to England," Fr. Lynch con- sidered a breath-taking panorama of sources in the course of studying the

* School of Law, University of St. Thomas, Saint Paul, MN

1 An earlier version of this paper was presented at a Becket Fund Conference in 2005. It will appear in a publication under the auspices of that institution and is here used with permission.

I This article is dedicated to Fr. John Lynch of the Catholic University of America in honor of his many years as a teacher, writer, administrator, and pastor of souls and schol- ars at the Catholic University of America.

2 See John E. Lynch, "Marriage and Celibacy of the Clergy in the Discipline of the Western Church: An Historico-Canonical Synopsis," The Jurist 32 (1972) 14-38, 189-212; idem, "Co-Responsibility in the First Five Centuries: Presbyteral Colleges and the Election of Bishops," The Jurist 31 (1971); and idem, "The Eastern Churches: Histor- ical Background," The Jurist 51 (1991) 1-17.

3 John E. Lynch, "Laying Down the (Canon) Law at Catholic University," The Jurist 50 (1990) 2-57.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 253

role of the Church in furnishing sanctuary to those accused of crimes, from the Christian Roman Empire through the Corpus luris Canonici, to the Provinciale of the English canonist William Lyndwood, up to the de- struction of this ancient right by the English King James I.4 And in "The Canonical Contribution to English Law," Fr. Lynch examines the me- dieval antecedents of some familiar English legal institutions. 5 About marriage, which is the subject of this study, Fr. Lynch notes in particular the profound hold medieval theories of indissolubility exercised over the English legal imagination until the latter half of the nineteenth century.

6

His larger point, of course, is to document this pervasive influence on the English legal order.

This article draws inspiration from Fr. Lynch's own work, especially these latter studies of canonical influence on secular legal orders. While the paper's purpose is broad-to examine the relationship of religion, the state, and marriage, it is largely historical in focus and concerned with the ways in which medieval canon law both directly and through the me- diation of early-modern Anglican canon law, influenced American jurists and judges of the nineteenth and twentieth centuries. It has a philosoph- ical dimension also, in its contention that this historical record reflects an inevitable human reality-that law and religion, marriage, and the state not only have historically influenced each other but that they must do so, as a condition of a healthy society.

. Religion, Marriage, and the State: the Medieval Synthesis:

A necessary first step must be definitional. Religion has been defined variously by philosophers, anthropologists, historians and others. It has received different definitions depending on the faith commitments of the scholar who proposes a definition. A particularly compelling definition has been offered by Judge John Noonan, who has proposed that religion is fundamentally about the relationship between persons and "a heart not known, responding to our own." 7 This unknown presence, who shapes

4 John E. Lynch, "Medieval Canon Law on Sanctuary With Particular Reference to England," in Unico Ecclesiae Servitio: L'itudes de droit canonique offertes Germain Lesage, ed. Michel Th6riault and Jean Thorn (Ottawa: University of St. Paul, 1991) 71-89.

5 John E. Lynch, "The Canonical Contribution to English Law," Studia Canonica 33 (1999) 505-525.

6 Ibid., 511-513. 7 John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Reli-

gious Freedom (Berkeley: University of California Press, 1998) 2.

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us, stands with us, whom we trust with our deepest intimacies, is God. "[L]iving communication" characterizes this relationship which must be approached with "empathy" and "imagination." 8 Religion, furthermore, is bound inextricably with the nature of the human person. Indeed, Noo- nan makes the point that religion is as ineradicable an aspect of the human experience as is the sexual impulse. 9 Religion is about nothing less than the meaning of ultimate existence-"the problem of being and nonbeing, life and death." 10

What is of interest to the legal scholar are the ways in which the col- lective insights into ultimate meaning formed by a particular society come to be translated into norms and rules for social existence. This paper is concerned with one particular aspect of this much larger ques- tion-the nexus found at the confluence of three streams of human real- ity: religious belief, especially understood as collective social enterprise; the marital union; and the ways in which the state has used its authority and power to mediate and define the terms of the other two.

This paper will have its center of gravity in American legal history of the last two hundred years. But American legal history is not fully ex- plicable without an appreciation of what went before. Frederic William Maitland said regarding English legal history: "Such is the unity of all history that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.""1I This insight applies as much to American law as to the English law whose origins Maitland sought to ex- plain and to explore. Indeed, to tell the story of the interaction of religion, law, and the state in American history requires us to go back in time at least to the twelfth century. This starting point helps to reveal the power- ful relationship that has prevailed in Western history between religious faith and the legal structure of marriage. The twelfth century witnessed a renaissance in learning.12 The first universities were founded and set as their goal not merely the conservation of the collected wisdom of the past but the actual creation of knowledge through a dialectical method that

Ibid. 9 Ibid. '0 Edwin McDowell, "Professor Mircea Eliade, 79, Writer and Religious Scholar,"

New York Times (April 23, 1986) B 6 (quoting Mircea Eliade). 1 Frederic W. Maitland and Frederick Pollock, A History of English Law Before the

Time of Edward I (quoted in Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition [Cambridge, UK: Harvard University Press, 1983] 49.

12 See generally Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge, MA: Harvard University Press, 1927).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 255

questioned received authority. 13 This development was made possible by a general settling down of society and the emergence of complex institu- tional structures after a half-millennium of transitory and failed experi- ments at political organization following the collapse of Roman power in the West. Indeed, it has been persuasively contended that the western legal tradition itself came into being in the twelfth century as canon lawyers, many of them teaching and writing at the new universities, re- duced to systematic juridic forms the mass of ecclesiastical learning of the previous one thousand years.

14

Historically, going as far back in time as the twelfth century, marriage was defined in terms of legal categories that were shaped fundamentally by Christian theological insight. It was in the twelfth and thirteenth cen- turies that canon lawyers at the major European universities began to put into systematic legal form the theological heritage of the previous thou- sand years with a focus in particular on the thought of St. Augustine and other patristic writers of the era.

St. Augustine, who wrote at the end of the fourth century and the be- ginning of the fifth, conceived of marriage as serving three basic goods: procreation; permanence; and life-long faithfulness or unity.15 The me- dieval lawyers reduced these theological insights to legal categories and brought to their enforcement the coercive jurisdiction of the Church which had at its disposal a variety of spiritual sanctions.' 6 Where parties to a marriage affirmatively excluded one or more of these Augustinian goods from their exchange of consent, the union itself failed. The state, for its part, by and large ceded control of the marital relationship to the Church and contented itself with regulating some of the incidents that ac- companied a valid marriage. In the context of medieval England this in- volved such "incidents" as the exaction of feudal dues at the time of the

13 Hastings Rashdall notes that Bologna and Paris, both established "during the last

thirty years of the twelfth century," should be accounted the first universities. Bologna grew famous for its instruction in Roman and canon law; Paris for its theological and philosophical investigations. The Universities of Europe in the Middle Ages, ed. F.M. Powicke and A.B. Emden (Oxford: At the Clarendon Press, 1936) 1:17.

4 See generally, Berman, Law and Revolution. 15 Two of St. Augustine's most important works on this subject now appear in a single

volume-the new edition with facing translation prepared by P.G. Walsh. See De Bono Coniugali, De Sancta Virginitate (Oxford: Oxford University Press, 2001).

16 1 have summarized some of these developments in "The Augustinian Goods of Mar- riage: The Disappearing Cornerstone of the American Law of Marriage," BYU Journal of Public Law 18 (2004) 449, 451-456.

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marriage and the adoption of rules governing the inheritance of real, but not personal, property. 17

The medieval canonists were vigorous in fleshing out a theory of mar- riage that assigned theological significance to nearly every attribute of the marital relationship. They stressed, for instance, that only the consent of the parties themselves sufficed to make a marriage and gave as a rea- son the theological insight that marriage was an enduring union of souls that required a freely-chosen decision to enter precisely in order to con- vey its symbolic qualities to the world.18 The canonists further distin- guished between consent and consummation, and determined that while consent made a marriage, consummation conferred on it a special firm- ness that no human power might break. 19 Again, a theological explana- tion was offered as the basis of this rule. Consummation transformed a human relationship into a living, earthly representation of Jesus Christ's unfailing marriage to His Church.20

The medieval canonists developed yet more refinements for their theo- logically-inspired analysis of marriage. They distinguished between grounds of nullity and grounds of divorce. This much was required by their theology of an unbreakable marital bond. Entry into a life-long commitment obviously required the observance beforehand of a high de- gree of freedom from coercion and an awareness of the nature of the con- tract and its obligations. Hence persons marrying one another had to be free of external coercion, 21 and they could not be the victims of funda- mental error as to the person whom they were marrying. 22 Furthermore,

17 For the role played by the Crown and its law in medieval and early-modem England,

see T.F.T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, and Company, 1956) 535-537 (feudal incidents of marriage); and 528-530 (the emergence of primogeniture as the means of regulating the inter-generational transfer of land in England).

"8 Charles J. Reid, Jr., Power Over the Body, Equality in the Family: Rights and Do- mestic Relations in Medieval Canon Law (Grand Rapids, MI: William B. Eerdmans, 2004) 43-44.

19 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) 236. Consummation conferred on the marriage a spe- cial sacramental firmness that made the union indissoluble by any earthly power.

20 The development of this idea is one of the themes of the book by Seamus Heaney, The Development of the Sacramentality of Marriage from Anselm of Laon to Thomas Aquinas (Washington, DC: The Catholic University of America Press, 1963).

21 On the freedom to marry, see Reid, Power Over the Body, 37-50. 22 John Noonan observes that error as to the person as well as the person's status (free

or servile) invalidated consent. See John T. Noonan, Jr., Power To Dissolve: Lawyers and

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 257

they might be prevented from marriage with one another by any number of impediments that existed in the law.

23

The recognition that a given marriage might be invalid, that it might be so radically flawed that it could be considered never to have come into existence, led the canonists to develop a judicial system empowered to investigate such claims. Success before the ecclesiastical courts led to the granting of an annulment; and those who obtained annulments of their putative marriages were thereby freed to move to new partners. After all, they had not been married at all in the eyes of the Church.

On the other hand, parties whose marriages, although valid, failed for some fundamental reason such as adultery or a lapse into heresy, enjoyed the right to seek an ecclesiastical divorce, although such a decree carried no right of remarriage. In addition to adultery and heresy, one might also seek a decree of separation by reason of excessive violence and brutality (called saevitia by the canonists). 24 Again, what one sees at work here are the consequences of the doctrine of indissolubility-the marital bond was held to be enduring, even where the parties found it impossible to live together and were granted by competent authority the right to live apart. Since the bond endured for so long as both parties remained alive, remarriage was theoretically impossible during the lifetime of the other party.

Nor were these the only rules the medieval canonists developed. The canonists were truly prolific in defining and developing any number of the other elements of domestic relations law as it evolved from the mid- dle ages to the twentieth century. The English Reformation modified some aspects of the edifice constructed by the medieval canonists. The belief that marriage was a sacrament was done away with.25 The Angli- cans also followed the lead of their Continental Protestant brethren in

Marriages in the Courts of the Roman Curia (Cambridge, MA: Harvard University Press, 1972) 36.

23 For a list of the basic impediments, see Richard H. Helmholz, Marriage Litigation in Medieval England (Cambridge, UK: Cambridge University Press, 1974) 36.

24 The grounds for divorce are discussed in Reid, Power Over the Body, 135-149. The

ground of violence developed as a kind of equitable estoppel, as American lawyers would term it: the defendant wife would raise as a defense the husband's violence as a justifica- tion for her decision to separate and the Court would refuse to grant the husband's petition for reconciliation.

25 John Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western

Tradition (Louisville, KY: Westminster/John Knox Press, 1997) 140-153.

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reposing ultimate authority in the male head of household while simulta- neously diminishing the rights of women.

26

But in other respects, the Anglican canonists did not greatly disturb the basic legal structure established by their medieval predecessors. English jurists continued to stress-as had the medieval canonists-that mar- riage was a contract that derived its efficacy from divine law. Thus John Ayliffe, writing in the early eighteenth century, wrote that marriage "was first instituted by God himself in Paradise. ' 27 It was ordained by God "for the Propagation of Mankind. ' 28 Indeed, the "Law of Nature" and "right Reason itself' taught that the "Necessity of human Propagation" was the obvious and transcendent purpose for which marriage was brought into being.

29

Ayliffe's contemporaries echoed these sentiments. Lord Stair in the late seventeenth century described marriage in similarly transcendent terms. Marriage, he wrote, "Was iure divino"-the product of divine law.3" The marriage contract, Lord Stair added, "is not a human, but a di- vine, contract."' 31 The basic rules of marriage were also the product of di- vine law. Lord Stair gave the specific example of the incest prohibitions. "[T]here is," he stressed, "a natural abhorrence of that promiscuous com- mixtion of blood.

32

26 This diminution of the wife's rights is well-expressed in the common-law doctrine

of coverture, by which the wife's legal personality was merged with that of her husband to create a single legal entity with the husband empowered to act in its name. William Black- stone described the consequences of this doctrine: "By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended dur- ing the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french afemme-covert." Commentaries on the Laws of England (Chicago: Uni- versity of Chicago Press, 1979) (reprint of the 1766 edition) 2: 430. The ways in which the Bible was used by American courts to justify this doctrine are discussed below.

27 John Ayliffe, Parergon Juris CanoniciAnglicani (London: Thomas Osborne, 1734) 359.

28 Ibid., 359-360. 29 Ibid., 360.

30 James Dalrymple, Viscount of Stair, The Institutions of the Law of Scotland, ed.

David M. Walker (Edinburgh: University Press of Edinburgh and Glasgow, 1981) 105. 31 Ibid. 32 Ibid., 106.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 259

English Protestant lawyers thus shared with their medieval forebears a belief in the divine origin of marriage, even while they eschewed its sacramental character. And even though they no longer considered mar- riage a sacrament, they continued to retain the older canonistic rules gov- erning marital indissolubility. A party seeking to take leave of his or her marriage might, like his or her medieval ancestors, choose either to have the marriage declared invalid (styled by the English lawyers "divorce a vinculo"); or seek "a separation from bed and board" (divorce a mensa et thoro). A decree of nullity carried with it the right of remarriage, but sep- aration from bed and board did not.3 3 To obtain the right to marry fol- lowing such an "ecclesiastical divorce," furthermore, one had to take the step of petitioning Parliament for permission, which, in practice was rarely sought and even more rarely granted.

3 4

Until 1857, the English ecclesiastical courts retained jurisdiction over marriage and its incidents.35 In the centuries between the Reformation and the abolition of ecclesiastical jurisdiction, these courts had created an ornate structure of marriage law which would prove to have signifi- cant impact on the law of the nineteenth-century United States.

While the great bulk of this paper is concerned with exploring the re- lationship of religious belief and marriage in American law, it is neces- sary to understand the medieval and early-modern English background because it provides the deep structure to the American law of marriage. American lawyers continued to operate, well into the twentieth century, in a juristic universe that used the language of divine and natural law to describe the marital relationship and its peculiar attributes. Many pecu- liarities of the law of domestic relations as found in the nineteenth- and early-twentieth-century America can only be explained by a knowledge of the canon law that had come before. In short, the frame of reference that lawyers relied upon to define and defend the obligations of parties to a marriage was essentially medieval. Sacramentality may have disap-

33 Lawrence Stone, Road to Divorce: England, 1530-1987 (Oxford: Oxford Universi- ty Press, 1990) 301-306.

31 See generally Harvey Crouch, "The Evolution of Parliamentary Divorce," Tulane Law Review 52 (1978) 513-540.

15 For a good account of the Marital Causes Act of 1857, which removed jurisdiction over domestic relations from the ecclesiastical courts and placed it instead in the hands of royal judges, see Stephen Cretney, "Ending Marriage By Judicial Divorce Under the Mat- rimonial Causes Act of 1857." Chap. 5 in Family Law in the Twentieth Century: A Histo- ry (Oxford: Oxford University Press, 2003) 161-195.

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peared, secular courts may have come to regulate the marital relation- ship, but still the medieval thought-world persisted in some very inter- esting ways.

But while the ideas and language frequently remained identical with the vocabulary and thought-world of much older times, the North Amer- ican legal context was, of course, entirely different from early modem England or late medieval Europe. Perhaps the most important difference is the fact that early American courts operated in a universe in which ec- clesiastical jurisdiction had been abolished. While English lawyers had to wait until the late 1850s to see ecclesiastical jurisdiction over marriage abolished, the jurisdiction of church courts had almost entirely vanished from America before the founding of the new Republic.

This, then, is the anomaly that informs the relationship of domestic re- lations law and the state in the context of American legal development- the anomaly of secular courts applying categories of thought that were given shape and substance by centuries of labor on the part of ecclesias- tical canonists and courts. While I shall focus on the tripartite relation- ship described by my title-marriage, religion, and the state-it is a re- lationship defined not only by the use of religious categories to define marriage, but by the fact that it was secular, not religious, courts that had to make use of these essentially religious categories. How this anomaly played out in American history is the subject of the second part of this paper. The normative question-does this historical record compel some sort of response?-is deferred until the paper's final section.

II. Marriage and Religion in American Legal History:

A. Preliminary Considerations:

The title of this section lends itself to an expansive investigation. That temptation, however, must be resisted, enticing as it is. American do- mestic relations law has deep roots in the sort of medieval and early- modem Christianity discussed in section I. To draw upon this material as deeply as one might wish would require a book-length treatment.

I shall, alas, content myself with a brief and impressionistic survey of the subject, looking at a few representative samplings of the ways in which American courts invoked, adapted, and utilized a religious frame of reference in resolving matrimonial disputes. I am concerned in partic- ular with the use of a legal vocabulary-distinctive turns of phrase or ideas-that is traceable to medieval Christian or to Anglican canonistic antecedents. Such an undertaking has value in its own right and consti- tutes an interesting form of intellectual history-an exercise that speaks

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 261

not only to what early American courts thought about marriage, but also what they regarded as legitimate sources of law. Aside from its value as history, furthermore, the investigation has value in widening the horizon of contemporary public policy debates that seem excessively dependent upon a variety of utilitarian calculations to the exclusion of larger ques- tions about ultimate human goods.

As a preliminary matter, one must discuss briefly the early American understanding of the sources of law. A modem American law student is trained to read cases to search for their holdings; to read statutes in search of their scope and application; and to consider carefully the language of particular constitutional provisions. These are now the formal sources of law to the exclusion of almost everything else. This intensely positivistic reading of the law, however, was simply not known to lawyers in the early American Republic. One might take William Blackstone's account of the sources of law as representative of the ways in which early Amer- ican lawyers viewed the most fundamental question a lawyer confronting the sources must ask, i.e., what is law? (Blackstone's Commentaries, al- though English, was considered the obligatory starting point for legal study in the United States even decades after the Revolutionary War).

3 6

In his hierarchy of sources, Blackstone began with "the law of nature," which is nothing less than "[the] will of [man's] maker," God.37 This nat- ural law included "the eternal, immutable laws of good and evil., 38 The eternal natural law, Blackstone stressed, was superior to human law; in- deed, "no human laws are of any validity, if contrary to this."39 Natural law, furthermore, consisted of two sub-categories: That taught directly by God, through Scripture; and that deduced by the human person through the use of reason.40 Blackstone followed this distinction by insisting once again: "[N]o human law should be suffered to contradict these."

41

36 An important study of the influence of Blackstone on early American legal educa-

tion is Steve Sheppard, "Casebooks, Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall," Iowa Law Review 82 (1997) especially 547-564. 37 Blackstone, Commentaries, 2:39. 31 Ibid., 40. " Ibid., 41. 40 Ibid., 42. " Ibid. Closely related to these two types of natural law is a third branch of the law, the

"law of nations" (ius gentium) which Blackstone understood as essentially derivative of these other laws. Blackstone explained the relationship: "Hence arises a third kind of law to regulate this mutual intercourse [among states], called 'the law of nations;' which ... depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements ..... Ibid., 43.

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After establishing the primacy of divine and natural law, Blackstone then turned his attention to the "municipal law," by which he meant the law binding within particular kingdoms and realms (" 'a rule of civil con- duct prescribed by the supreme power in a state' -).42 The British Con- stitution, which consisted of the monarchy, the lords spiritual and tem- poral, and the House of Commons, Blackstone claimed, was uniquely well-suited to exercise this authority.43 Charged with law-making and law-interpreting powers, these constitutional offices oversee, conserve, and advance the municipal law of the realm-not the common law only, but also the "ecclesiastical," the "military," the "maritime," and the "aca- demical law." 4 Common law, which is both written and unwritten, con- sists finally in customs, judicial interpretation, and statutory enactment.

Blackstone's writings reflected an essentially theistic understanding of the law with deep roots in medieval thought. The proposition that human law mirrors and must be in conformity with the divine and natural law can be found in many medieval sources. 4 The relative degree of def- erence he showed to the authority of king and Parliament reflected, no doubt, the sort of recognition an eighteenth-century Anglican had to pay to the status of king as supreme in church as well as state. But even with that qualification, it is clear that Blackstone understood the divine and natural law, whose main principles are knowable by human reason, to serve as an ultimate check on the potential arbitrariness of merely human rule.

Blackstone's Commentaries would prove immensely popular in the new United States and exercised a commanding authority over early American jurists. The study of Blackstone's Commentaries as an indis- pensable introduction to the study of law ensured that practitioners would acquire an awareness of the wholeness of the law and a sense of its jurisprudential foundations in a way that instruction from casebooks has

42 Ibid., 46. 43 Ibid., 50. 44 Ibid., 84. Blackstone treats the "civil and canon laws" as a branch of these laws sub-

ordinate to the common law, which is the most exalted law of the English nation. Ibid. 45 One might consult the opening passages of Gratian's Decretum. Gratian begins with

the observation that humankind is governed by "law" and "customs." And by "law," Gra- tian means the ius naturae which is found in the gospels and in Jesus Christ's golden rule, "Do unto others as you would have them do unto you." D. 1, pr. Gratian followed this with an excerpt from Isidore of Seville that commenced: "Omnes leges aut divinae sunt, aut hu- manae" (All laws are either divine or human). D. 1. 1. Blackstone's own definition of law clearly fits within this larger tradition that had its origin in the twelfth century.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 263

failed to do, given the latter's tendency to move from doctrine to doc- trine, while all the while focused on narrow questions of law.

4 6

And these jurisprudential foundations were self-consciously Chris- tian. In particular, early American lawyers and judges picked up and de- veloped Blackstone's teaching that "Christianity is a part of the laws of England."47 This assertion became so ubiquitous in the nineteenth cen- tury that one modem historian has been led to write:

Nineteenth-century American judges and lawyers often claimed that Christianity was part of the common law. From Kent and Story in the early part of the century, to Cooley and Tiedeman to- ward the end, the maxim that 'Christianity is part and parcel of the common law' (or some variant thereof) was heard so often that later commentators could refer to it as a matter 'decided over and over again,' one which 'text writers have affirmed.' "48

B. The Survival of a Religious Vocabulary in the American Law of Marriage:

1. Marriage, the Divine Law, and the Law of God:

It is jarring and unexpected to find references to the divine law when reading the opinions of American courts that have undertaken to explain the foundations of the law of marriage. One might expect to see this sort of reasoning in a medieval discussion of marriage's sacramentality.4 9

One might also expect to see such language in an early Anglican treatise on canon law, such as that of John Ayliffe, who insisted that the institu- tion of marriage was a matter of "Divine Will and Command."5 And, of course, one still encounters this sort of language in the official teaching of the Catholic Church, as, for example, the Second Vatican Council's af- firmation that marriage "is an institution confirmed by divine law."'51 But

46 See Harold J. Berman and Charles J. Reid, Jr., "The Transformation of English

Legal Science," Emory Law Journal 45 (1996) 437-522, especially 509-522. 47 Stuart Banner, "When Christianity Was Part of the Common Law," Law and Histo-

ryReview 16 (1998) 27, 30. 48 Ibid., 27. 49 See, e.g., the discussion of the divine plan for marriage as it applies to believers and

non-believers in a canonist like Rufinus, Summa Decretorum, ed. Heinrich Singer (Aalen: Scientia Verlag, 1963) 442-443.

50 Ayliffe, Parergon, 360. 5 Gaudium et spes 48. I am here following the translation of Austin Flannery, OP.,

Vatican Council I1: The Conciliar and Post-Conciliar Documents (Collegeville, MN: The Liturgical Press, 1975) 950.

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to find such assertions in American judicial opinions seems entirely out of place.

One is nevertheless confronted with a group of cases that declare ex- actly that. In 1876, in language that was, at least in part, eerily reminis- cent of the privacy decisions of the mid-1960s United States Supreme Court, the Supreme Court of New Hampshire wrote of marriage that "it is the most intimate and confidential of all human relations, and has al- ways been sanctioned and protected by both human and divine law."

52

The Supreme Court of Washington declared in 1892 that "the married state is a most commendable one, and ought to be encouraged in all le- gitimate ways, having, as it does, its origin in divine law."53 The Supreme Court of Indiana rejected the proposition that a married woman over the age of twenty-one required a guardian as something that "would be a vi- olation of all our ideas of secular and divine law."54 The Missouri Supreme Court spoke of marriage as a "sacred relation," held as much "in the common as in the Divine Law."

55

This phraseology retained significance into the early and middle decades of the twentieth century. In 1958, the New York Supreme Court, Appellate Division, quoted with approval an earlier decision of the New Jersey Supreme Court:

The human race was created male and female with the manifest purpose of perpetuating the race. Marriage without sexual inter- course utterly defeats its purpose, as sexual intercourse except in the marital relation is contrary to divine law .... 56

Perhaps the most interesting of these early- and middle-twentieth- century cases comes from Pennsylvania. At issue in In re Enderle Mar- riage License, decided in 1954, was a statute that prohibited marriage be- tween cousins.57 Frank, the petitioner, was adopted into the Enderle fam- ily and sought to marry his cousin by adoption, Adelheld. 58 The parties

52 Drew's Appeal, 57 N.H. 181, 182-183 (1876). The privacy cases, of course, re-

tained the language about human intimacy but stripped away references to divine law. 53 In re Estate ofMcLaughlin, 4 Wash. 570,590,30 P. 651,658 (1892). 54 Exparte Post, 47 Ind. 142, 143 (1874). 55 Nichols v. Nichols, 147 Mo. 387,410,48 S.W. 947 (1908).

56 Diemer v. Diemer, 6 A.D.2d 822, 823, 176 N.Y.S.2d 231, 232-233 (quoting Raymond

v. Raymond, 79A. 430, 431 (N.J. Ch. 1909)). 57 In re Enderle Marriage License, I Pa. D. & C. 2d 114 (1954). 5 1 Ibid.

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were not blood relations. The Court determined that the statute in ques- tion was intended to prevent incest between blood relations only, and not those related by adoption, and so permitted the issuance of the marriage license. What is interesting, however, was the reasoning the Court em- ployed in reaching this conclusion. It offered two secular justifications for its reading of the statute, but gave primacy of place to an argument drawn explicitly from its understanding of the divine law:

The purpose of the legislature in prohibiting marriages within certain degrees of consanguinity and affinity is at least threefold: (1) To maintain the Divine Law forbidding the marriage of close relatives; (2) for eugenic reasons, to preserve and strengthen the general racial and physical qualities of its citizens by preventing inbreeding; and (3) to maintain the sanctity of the home and pre- vent the disastrous consequences of competition for sexual com- panionship between members of the same family.

59

Fifty years removed from Enderle, we no doubt would find different language when analyzing this problem. The invocation of racial im- provement and eugenics, thankfully, is no longer a part of our public dis- course, although a general desire to prevent inbreeding is certainly still a legitimate public policy. And a concern to limit sexual competition within a family unit would loom very large in our public justifications for the law. Divine law, however, would no longer be mentioned, let alone have the "D" and the "L" put in capital letters. What is remarkable, how- ever, is how hardy such language has proven to be. The reasoning of the Enderle Court would have been recognizable by thirteenth-century canonists and by seventeenth- and eighteenth-century Anglican divines alike. Enderle's language moved, in other words, in a very ancient thought-world.

Analytically nearly identical to divine law is the linguistic formula, "the law of God." In addition to divine law, one encounters frequent in-

51 Ibid., 120. Enderle's invocation of divine law was repeated with apparent approval by at least two subsequent Pennsylvania courts. In Adameze v. Adameze, the Court, relying on language in Enderle, determined, on its reading of the Book of Leviticus, that marriage be- tween first cousins related by blood was not prohibited by divine law. 47 Pa. D. & C. 2d 445,449 (Pa.Com.P. 1969). And in Marriage of MEW and MLB., 4 Pa. D. & C. 3d 51,58 (Pa.Com.Pl. 1977) the Court cited without discussion or disapproval Enderle's use of di- vine law.

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vocations of "the law of God" in cases involving marriage and domestic relations. Thus one finds the Arkansas Supreme Court writing:

[W]e ought to say that marriage is a divine institution. As a con- sequence thereof, it isordained by the laws of God and man that children shall be brought into the world. The family throughout all Christendom is the primal unit of society.

6°

Invocations of "the law of God," like invocations of the divine law, are not found only in cases arising from the Bible Belt. One sees, for exam- ple, the Connecticut Supreme Court upholding a lawyer's disbarment upon his adultery conviction because he chose "'to put his own ideas of law above what you might fairly call the laws of God and man."' 6 1 The Supreme Judicial Court of Massachusetts denounced attempts at mar- riage that were "against the laws of God" and specifically referenced the incest provisions. 62 And a dissenting opinion from the Supreme Court of California described a man who chose to cohabit with a woman other than his wife as someone whose "relationship violates the laws of God and man."

63

Like invocations of divine law, one finds references to the "laws of God," or "God's law," occurring with at least some frequency into the middle decades of the twentieth century. Thus a dissenting opinion in a 1947 case from the State of Washington denounced a couple living in adultery as "insensible to the laws of God and man." 64 The Texas Court of Criminal Appeals, meanwhile, sustained a bigamy conviction as a vi- olation of "the laws of God and man." 65 Even a judge like Learned Hand

60 Pryorv. Pryor, 151 Ark. 150, 158 (1922). 61 Grievance Committee of the Hartford County Bar v. Broder, 112 Conn. 269, 276,

152 A. 2d 292, 295 (1930) (quoting the sentencing judge at the time of the disciplined lawyer's conviction).

62 Sutton v. Warren, 51 Mass. 451, 452 (1845). 63 Moore Shipbuilding Corporation v. Industrial Accident Commission, 185 Cal. 200,

210, 196 P. 2d 257, 261 (1921)(Wilbur, J., dissenting). The language of Justice Wilbur was subsequently repeated and endorsed by the Indiana Court of Appeals. Russell v. Johnson, 112 Ind. App. 253,266,42 N.E.2d 392, 398 (1942). A subordinate California appellate tri- bunal made a similar statement in a case with unusual facts. The wife alleged that her ex- husband's parents tortiously interfered with their marriage causing it to fail. The Court re- sponded: "It is not unlikely in moments of resentment they said harsh and unkind things about her; but that fact alone does not justify an inference that they violated the laws of God and society by trying to break up the marriage relation of these young people." Bourne v. Bourne, 43 Cal. App. 516, 530-531, 185 P. 489, 495 (2d Dist. 1919).

64 Norman v. Norman, 27 Wash. 2d 25, 34, 176 P.2d 349,355 (1947)(Simpson, J., dis- senting).

65 Harrison v. State, 44 Tex. Crim. 164, 168, 69 S.W. 500, 502 (1902).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 267

invoked "God's law" in ruling that an immigrant couple consisting of an uncle and a niece were not guilty of any crime for having married one an- other in a foreign ceremony and were thus not subject to deportation.

66

The question an historian must confront is how ought one to make sense of these cases? The following conclusions seem warranted: Many early American jurists seemed to think that marriage was something that had its origins in a natural law that in turn reflected a divine plan; this nat- ural law exercised real power over human affairs even in the absence of the state or the state's laws. It fell to law makers and judges to interpret and apply this law, not to legislate out of whole cloth. More generally, one can also conclude that Christianity continued to exercise not only a cultural influence over the judiciary but a real intellectual and moral at- traction. While I am restricting this paper to marriage and domestic rela- tions law, its thesis-that the jurisprudential foundations laid down by generations of medieval and early-modern lawyers continued to influ- ence the shape of American judicial thought until only a couple of gen- erations ago-seems capable of a broader application. I have explored some aspects of this influence in other work.

67

This two-fold reading of the historical record, emphasizing both the general historical influence of Christianity and its specific applicability to the shape of American domestic relations law, is probably the most helpful explanation for the marital teaching of the early American jurist, Chancellor James Kent of New York, who declared that:

The primary and most important of the domestic relations is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the con- tinuance of the human race.

68

66 United States v. Francioso, 164 F. 2d 163 (2d Cir. 1947). After noting that marriages

between uncles and nieces were not forbidden under New York law until 1893, Hand as- serted, "To be sure, its legality does not finally determine its morality, but it helps to do so, for the fact that disapproval of such marriages was so long in taking the form of law, shows that it is condemned in no sense as marriages forbidden by 'God's law."' Ibid., 164.

67 See Charles J. Reid, Jr., "The Disposal of the Dead: And What It Tells Us About American Society and Law," in Figures in the Carpet: Finding the Human Person in the American Past, ed. Wilfred M. McClay (Grand Rapids, MI: William B. Eerdmans, 2007) 428-445.

68 Chancellor James Kent, Commentaries on American Law (New York: E.B. Clayton and James Van Norden, 1836) 2:74.

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2. The Book of Leviticus and the Early American Judiciary:

General invocations of divine law or the law of God, a critic might in- sist, reveal nothing more than a decent respect for the common pieties of the age. It reveals little real influence of Christian principle on actual legal practices or doctrines. Proof of influence only comes with evidence that a particular contemporary legal institution has assumed a certain shape precisely because of some particular Christian teaching. The ac- knowledgments of divine law so far discussed, this critic might continue, really show only that some judges at least knew to appeal to popular Christian opinion in a more religious age.

Such a criticism is invalid. In fact, one can point to particular instances of influence on particular legal institutions. One might thus consider the law of incest. As the Enderle case reveals, multiple justifications might be cited as support for the incest prohibition. 69 In fact, however, nine- teenth-century legal commentators tended to look to the Bible when ar- guing against incest. In introducing the subject of incestuous marriage to his readers in 1891, Joel Prentiss Bishop, one of the most prolific of the nineteenth-century treatise writers, 70 declared "[t]he law of this subject [to be] a compound of natural law and theological dogma. ' 71 Bishop went on to trace the history of the rules regarding incest and marriage, as they had developed in the Anglo-American context. A statute of King Henry VIII-"which is common law in this country," Bishop assured his readers-"declared lawful the marriage of all persons 'not prohibited by God's law to marry; and that no reservation or prohibition, God's law ex- cept, shall trouble or impeach any marriage without the Levitical de- grees."

72

The Henrician statute's reference to the "Levitical degrees" proved es- pecially fertile ground for nineteenth- and twentieth-century courts. Chapter eighteen of the Book of Leviticus prohibited, among other li- aisons, sexual intercourse between a parent and his or her children, be- tween or among siblings, and, by implication, lineal descendants or an- cestors in the parental line. 73 Leviticus also prohibited sexual relations

69 See In re Enderle Marriage License, supra. 70 On Bishop's career and the great influence he enjoyed with his contemporaries, see

Stephen A. Siegel, "Joel Bishop's Orthodoxy," Law and History Review 13 (1995) 215-260.

71 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation (Chicago: T.H. Flood and Company, 1891) 316.

72 Ibid., 318. 73 See Leviticus 18:6-18 for the entire list of prohibitions.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 269

between in-laws. 74 The term "consanguinity" was used generally in the law to describe those barred from marriage to one another by blood rela- tionship, while "affinity" was used to describe those in-laws forbidden to marry one another. For much of American history, courts made regular use of the levitical degrees and the categories they established as a source of guidance in resolving a number of disputed questions concerning do- mestic relations law.

The extent to which the Henrician statute with its biblical foundation was considered an applicable source of law can be gauged by an early Kentucky opinion that engaged in what might look to contemporary readers as a fairly tortured reasoning process. The Kentucky Supreme Court in Jenkins v. Jenkins' Heirs rejected an expansive reading of the statute that permitted all those not related in the levitical degree to marry.75 More was required to marry validly, the Court insisted: since marriage was a civil contract and, impliedly at least, was governed by the rules of contractual capacity, parties were required to enjoy the use of reason in order to consent.7 6 Thus the Court concluded not only close rel- atives but also the insane were prohibited from marriage. 77 It is clear that the Court felt compelled to engage in this labored exegesis of biblical precedent and the natural-law grounds of contractual capacity because it was painting on a largely blank canvas since it does not appear that there was a statute on point. The Court wished to make it clear that neither in- cest nor the marriages of the insane would be tolerated. And the rules es- tablished in Leviticus were the best source it could come up on the incest prohibition.

Other courts accepted the levitical degrees as a convincing foundation for the incest prohibition. The Supreme Judicial Court of Massachusetts in 1924 confronted the question whether parties related by the half-blood were prohibited from marriage. 78 The Court reviewed the history of the Commonwealth's incest prohibition from the acceptance of the levitical degrees as a source of law in sixteenth-century ecclesiastical law, and on through a succession of ecclesiastical and secular sources. 79 The Massa-

74 Ibid. 75 Jenkins v. Jenkins'Heirs, 32 Ky. 102 (1834). 76 Ibid., 104-105. 77 Ibid. 78 Commonwealth v. Ashey, 248 Mass. 259, 142 N.E. 788 (1924). 71 Ibid., 260, 142 N.E. at 788.

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chusetts Court concluded that it should accept the interpretation placed on the levitical degrees by the English ecclesiastical courts when they prohibited marriages among those related by the half-blood. 80

The Louisiana Supreme Court, for its part, acknowledged that incest lacked "a fixed and definite meaning," but that the levitical degrees pro- vided generally sound guidance. 8 ' In 1914, the Iowa Supreme Court jus- tified its acceptance of the levitical degrees by noting that their use in re- solving incest questions was endorsed by a leading legal encyclopedia.

82

And in 1929, the Supreme Court of Iowa reviewed the legal history of the levitical degrees and their importance to domestic relations law in re- sponding to an appeal of a criminal conviction for incest.

83

The levitical degrees figured prominently in a variety of contexts, such as judicial efforts to define or clarify what is meant by "incest;" the de- termination of appeals of criminal convictions for incest, and the resolu- tion of sometimes vexing and complex problems involving wills, trusts, and inheritances. We will consider examples of each.

The degree to which courts unreservedly consulted Leviticus for guid- ance on definitional questions in domestic relations law can be illustrated by the case of Brotherhood of Locomotive Firemen and Enginemen v. Hogan, decided in 1934 by the Federal District Court for Minnesota.8 4 At issue was the legal definition of "affinity." "Affinity," the Court wrote, "is generally defined by the relationship by marriage between a husband and his wife's blood relatives, or between a wife and her husband's blood rel- atives. Unlawful or forbidden marriages due to affinity are set forth in Leviticus, chapter XVIII.

85

Courts also looked to the levitical degrees as a means of justifying convictions for incest. Lipham v. State involved a prosecution under Georgia law of a husband who had sexual relations with his step-daugh- ter, the out-of-wedlock child of his wife. 8 6 The Georgia Supreme Court sustained his conviction:

80 Ibid., 261, 142 N.E. at 788. 8I State v. Smith, 30 La. Ann. 846, 849 (1878). 82 State v. Andrews, 167 Iowa 273, 278, 149 N.W. 245, 247 (1914). 83 State v. Lamb, 209 Iowa 132, 134, 227 N.W. 830, 831 (1929). 84 Brotherhood of Locomotive Firemen and Enginemen v. Hogan, 5 F. Supp. 598 (D.

Minn. 1934). 85 Ibid., 604-605. 86 Lipham v. State, 125 Ga. 52, 53 S.E. 817 (1906).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 271

If a man marry the mother of an illegitimate daughter, and take the daughter into his care and custody, he becomes charged with a duty towards her. His disregard of morality and decency in hav- ing sexual intercourse with her is a crime transcending a mere misdemeanor. The act has all the elements which constitute in- cest. As incest, it should be punished. 'Thou shalt not uncover the nakedness of a woman and her daughter.' Leviticus, XVIII, 17."87

The New York Court of Appeals was confronted with an even more reprehensible version of the question Lipham presented. The defendant in People v. Lake had fathered an out-of-wedlock daughter and some years later, when she had "just grown into womanhood," hired her as his "bookkeeper." 88 He took advantage of her sexually, and was charged and convicted of incest. The Court of Appeals sustained his conviction, rely- ing for support in part upon its reading of English law and the Book of Leviticus: "It was early held to be unlawful for a bastard to marry within the Levitical degrees (Hains v. Jeffel, 1 Ld. Raymond 68); a doctrine which of necessity recognized relationships of consanguinity."

89 Since marriage was impossible by reason of incest, the Court reasoned, the de-

fendant's illicit relationship should also be deemed incestuous and so punishable.

90

Courts finally looked to the levitical degrees in establishing inheri- tance rights among close family members. This is especially evident in

some lawsuits that sought to establish parental rights to inherit from ille- gitimate offspring or to represent their offspring's estates in wrongful- death actions. In these cases, those who opposed extending inheritance rights or the right to bring a cause of action tended to cite common-law rules derived in part from a reading of the "levitical degrees." In essence, it was claimed that illegitimate children were bound to observe the levit-

17 Ibid., 54-55,53 S.E. at 818. 88 People v. Lake, 110 N.Y. 61,'62, 17 N.E. 146, 146 (1888). 89 Ibid., 62-63, 17 N.E. at 147.

90 Ibid. Cf. Morgan v. State, 11 Ala. 289, 291 (1847) (sexual relations between a par- ent and child "at variance with the laws of God and man" and a violation of the Henrician

statute "prohibit[ing] all marriage within the Levitical degrees"); and State v. Bartley, 304

Mo. 58, 62, 263 S.W. 95, 96 (1924) (relying on Joel Prentiss Bishop and its own reading

of the Henrician statute to condemn "marriages between persons related by blood or mar-

riage within the Levitical degrees").

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ical degrees in their choice of marriage partners, but that this should be the only aspect of their relationship to their biological parents that should be given recognition by law. They should, on this reading of the sources, refrain from sexual intimacy with close blood relations but otherwise share none of the legal privileges that were derived from membership in the family. Courts tended to accept this argument unless statutory sup- port could be found evincing a legislative intent to abolish the old com- mon-law disabilities of bastardy. Where the old disabilities had been done away with, on the other hand, courts tended to permit these parental claims to go forward.9 1

3. One Flesh and Putting Asunder: The Common-Law Reception of Biblical Ideals of Marital Unity

So far, we have considered the ways in which courts invoked the lan- guage and authority of the divine law and the law of God in describing and defining the marital relationship; and the ways in which courts em- ployed the Book of Leviticus, sometimes but not invariably as mediated through the law of Henry VIII, to resolve a variety of questions on incest. Next, we shall consider the judicial usage of a particular biblical teach- ing, i.e., Jesus's declaration that marriage must be permanent, to address contemporary questions of separation and divorce.

The Book of Genesis, in the poetic diction of the King James Bible, declared: "A man shall leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh. ' 9 2 Close variations of this lan- guage and imagery were used by Jesus, as recorded in the Gospels of Matthew and Mark, to establish an ideal of unbreakable unity between husband and wife. In Matthew, Jesus declared:

Have ye not read, that he which made them at the beginning, made them male and female. And he said, 'For this cause a man

91 See e.g. Marshall v. Wabash Railroad Company, 120 Mo. 275, 281, 25 S.W. 179, 181 (1894) (distinguishing the common-law rule with its reliance on the levitical degrees to deny marital or inheritance rights and state statutory reform that reaches a contrary re- sult respecting inheritance); Brisbin v. Huntington, 128 Iowa 166, 175, 103 N.W. 144, 147 (1905) (relying on language similar to Marshall to reach the same result); Wheeler v. Southern Railway Company, 111 Miss. 528,538,71 So. 812, 814 (1916) (the harshness of the common-law rules repealed by statute); L. T Dickason Coal Company v. Liddil, 49 Ind. App. 40, 44, 94 N.E. 411,412 (1911) (relying in part on the result in Marshall to reach a similar conclusion); and Williams v. McKeene, 193 Ill. App. 615, 618 (1915) (describing the law of Henry VIII as "God's law" but recognizing at the same time the possibility of statutory amendment where inheritance rights were concerned).

92 Genesis 2:24.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 273

shall leave father and mother, and shall cleave to his wife; and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together not man put asunder.

93

Mark's account of this teaching represented a largely verbatim sum- mary of that found in Matthew.94 St. Paul made use of similar imagery in Ephesians:

For we are members of his body, of his flesh, and of his bones. For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh.

95

This group of closely-related biblical texts exerted wide influence on judicial thought regarding marriage and divorce for the nineteenth and much of the twentieth centuries. One can find different variations on these biblical themes in any number of judicial contexts. One of the most important of these usages, obviously, was the defense of the integrity of the marital unit itself. Marriage was a sacred relationship that should be free from attack by third parties and respected and preserved by those who are joined by its yoke.

In a world of limited, fault-based divorce, where a party seeking a di- vorce needed to demonstrate some sort of marital misconduct on the part of one's spouse, at least some petitioners claimed that they were entitled to a divorce because their partners had never achieved any real degree of emotional separation from their parents. To paraphrase Jesus's teaching, they did not leave their mother and father, emotionally, and so were un- able to cleave to their spouse and thereby become one flesh. This lack of independence, the claim went, so gravely disrupted the new household that it had no real chance of succeeding against the vicissitudes of fortune.

An Indiana case from 1897 illustrates the way this argument might be made and the way in which a court might quote the Bible in response. The case involved a claim for alienation of affection brought by the for-

93 Matthew 19:5-6. 94 "But from the beginning of creation God made them male and female. For this

cause shall a man leave his father and mother, and cleave to his wife. And they twain shall be one flesh, so then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder" (Mark 10:6-9).

95 Ephesians 5:30-31.

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mer husband against his ex-mother-in-law. 96 The mother-in-law, it was alleged, had sought "to deprive [husband] of the society and services of his wife, and cause her to separate from him. 97 The Court responded with a mixture of biblical quotation and outright theology:

Marriage is the most sacred and holy relation known to Divine or human law. It is an institution ordained of God, sanctioned by all the nations of the earth, and recognized the world over as the foundation of society and the school of morals, and no one has a right to destroy and disrupt that relation, except for good and suf- ficient cause. It was early declared in the Mosaic law that a man should leave his father and mother, and cleave unto his wife, and that they should be one flesh. The Great Teacher said: 'But from the beginning of the creation, God made them male and female. For this cause a man leave his father and mother and cleave to his wife; and they twain shall be one flesh. What, therefore, God hath joined together let no man put asunder.

' 98

While most cases do not engage in this level of scriptural exegesis or theological speculation, any number of cases invoke the imagery of the child leaving his or her parents and cleaving to the spouse whenever a dispute involving the parents or in-laws came to be litigated. Thus the Vermont Supreme Court lectured a husband who would not move apart from his relatives in order to accommodate his wife's apparent strong de- sire for living arrangements independent of his old family ties: "Any man who has proper tenderness and affection for his wife would certainly not require her to reside near his relatives if her peace of mind were thereby seriously disturbed. This would be very far from compliance with the Scriptural exposition of the duty of husbands: 'For this cause, shall a man leave father and mother and cleave to his wife, and they twain shall be one flesh." 99

Similarly, a Michigan case decided in 1928 pitted a husband who in- sisted that his mother reside in the family home and a wife who separated from him and sought a divorce on that account. 1 00 Again, one sees a court invoking Scripture to admonish a husband to perform his husbandly du- ties: "In this the plaintiff [husband] was wrong. In other circumstances,

96 Jonas v. Hirshburg, 18 Ind. App. 581,48 N.E. 656 (1897). 97 Ibid., 600-601,48 N.E. at 662. 98 Ibid., 600, 48 N.E. at 662. 99 Powell v. Powell, 29 Vt. 148, 150 (1856).

100 De Mauriac v. De Mauriac, 243 Mich. 385, 220 N.W. 786 (1928).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 275

his devotion and loyalty to his mother would be commendable, but where the wife's interests intervene, his first duty is her welfare and happiness. 'For this cause shall a man leave father and mother, and shall cleave to his wife; and they twain shall be one flesh."' 10 1

One, in fact, finds this sort of scripturally-grounded analysis as re- cently as the late 1940s. At issue in Maricopa County v. Douglas was a statute that required children to make contributions toward the needs of elderly and infirm parents.' 0 2 The County Attorney sought to enforce the statute against community property owned by the elderly parent's daugh- ter and her son-in-law. The couple asserted that such enforcement would run counter to the state's policy in favor of marriage. The Court agreed, using Scripture for support:

We must now decide which theory public policy favors most- the support of the aged or the maintenance of the community. We think the latter is more important. The Holy Scripture tells us 'Therefore shall a man leave his father and his mother, and shall cleave to his wife; and they shall be one flesh.' Genesis, 2:24."103

The integrity of the marriage might also be attacked not by outsiders but by one of the parties, either by seeking a divorce that was unjustified in the eyes of the court or by engaging in acts of misconduct-criminal or otherwise-at the expense of an innocent spouse. Humber v. Humber, a Mississippi case from 1915, involved a husband who alleged that his wife had been excessively cruel to him, thus warranting the granting of a divorce."° The Court found the husband's allegations of cruelty insuffi-

101 Ibid., 386-387, 220 N.W. at 787. 102 Maricopa County v. Douglas, 69Ariz. 35, 208 P.2d 646 (1949). 103 Ibid., 43, 208 P.2d at 651. The word "community" standing alone as a noun in this

quotation is an interesting and perhaps deliberately ambiguous choice of words. In the context of a suit over the extent to which the State might invade community property, the Court clearly intended to say that the couple's property rights might not be so seized. But a more extensive reading of this noun is also possible. One might thus understand the Court to be protecting not the community property alone, but the "community" formed by the unity of husband and wife. Such a reading is supported by the Court's subsequent in- vocation of Genesis 2:24.

104 "From the proof adduced by appellant it appears his purpose to show that the cruel

and inhuman treatment complained of consisted of the conduct of his wife in a number of incidents, during their travels, in which she displayed temper and dissatisfaction with him and his provisions for her comfort and entertainment, and wherein she was inconsiderate of his feelings, abusive to him, discourteous and rude to his friends and kinsfolk, and gen- erally disagreeable in her demeanor." 109 Miss. 216, 219, 68 So. 161, 161 (1915).

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cient to justify a divorce and looked to the Bible for justification for its determination:

Marriage is a most solemn contract, provided for by the laws of the state and sanctified by the ceremonies of the church. The dis- solution of its bonds is no light matter. The best sentiment of so- ciety is opposed to divorce. The law authorizing divorces for cer- tain causes requires a strict compliance with its provisions. The church is guided by these words of eternal truth touching the sub- ject: "'From the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; and they twain shall be one flesh; so then they are no more twain but one flesh. What, therefore, God hath joined together, let no man put asunder. 1

05

A much older case, Logan v. Logan, dating to 1841 Kentucky, reached a similar result in favor of the marriage, on a fact pattern the details of which the Court delicately refrained from probing too explicitly.106 In establishing the legal standard to be applied, the Court looked to ecclesi- astical law's understanding of cruelty. There must be true "saevitia"- "savagery"-the Court wrote. 107 "Less severity than this will not autho- rize a court in this State to 'put asunder' those whom 'God hath joined together.' And were it otherwise, domestic quarrels might mischievously engross all the services of Courts of Justice."'

10 8

105 Ibid., 226-227, 68 So. at 164.

'06 41 Ky. 142 (1841). The Court's delicacy is remarkable: "As might have been ex- pected, [the couple] lived together in apparent harmony and happiness until early Febru- ary, 1838, when, for the first time, so far as we are informed, their domestic peace was dis- turbed by intemperate complaints and upbraidings on her part for alleged grievances, neither satisfactorily established nor explained by proof; and by unresponsive conduct upon his part, sometimes neither conciliatory nor the most prudent, and which tended rather to exasperate than to soothe the deeply moved feelings of his discontented and irri- tated wife. Their discord, soon becoming clamorous, attracted public observation which, instead of stifling, seemed only to inflame her heated passions. The intervention of friends, in and out of the church, invoked by Mr. Logan ostensibly for pacification, having failed and only added fuel to the flame, the prospect of cordial reconciliation became al- most hopeless; and the irritability and wretchedness of the parties seemed so fixed and ex- treme as to indicate either the existence of some untold and deep-rooted grief or a destitu- tion of that love and confidence which alone can happily cement the conjugal union, and without which wedlock is a curse." Ibid., 143.

107 41 Ky. 142 (1841) 147. 10s Ibid.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 277

The use of the canonistic category of saevitia by a pre-Civil War Ken- tucky Supreme Court would by itself be a remarkable demonstration of the deep and continuing influence of the canon law on American legal forms.. 109 Focused as we are on scriptural influence, we might try to read

Logan and Humber together as support for the proposition that when courts invoked biblical expressions like "one flesh" or "put asunder," they were generally willing to sustain the marriage in the face of a peti- tion for divorce. Lanier v. Lanier, an 1871 Tennessee case, may or may not be seen as support for this hypothesis, depending upon the weight one assigns to the dissenting opinion filed in that case.

110

The facts in Lanier can described as extreme. The husband alleged that his wife had succeeded in poisoning him; that he became deathly ill thanks to the effects of the poison; and that she deserted him during his hour of illness and need.11' Even if these facts were not literally true, the majority of the Court agreed, the wife's desertion was sufficient to justify the granting of the divorce.

1 2

This result caused Justice Peter Turney to dissent. Turney (1827- 1903) had been a colonel in the First Tennessee Infantry, demonstrating remarkable bravery at Antietam and Fredericksburg. After the war, he was elected to the Tennessee Supreme Court in 1870 and became chief justice in 1886. He would subsequently be elected governor of the State of Tennessee. 1 1 3 Turney's dissent put front and center the Christian char- acter of marriage including especially his biblically-grounded under- standing of its indissoluble character.

Sounding very like St. Augustine, Turney wrote that marriage subsists first in friendship between the parties. Turney, however, wished to apply this first principle directly to the case at hand. Thus, he observed that marital friendship:

thrives under constraint, and never rises to such a height as when any strong interest or necessity binds two persons together and

109 Saevitia is briefly noted supra. 110 Lanier v. Lanier, 52 Tenn. 462 (1871). "' Ibid., 463-464. 112 Ibid., 464-465. 113 Daniel M. Robinson, "Tennessee Politics and the Agrarian Revolt, 1886-1896,"

Mississippi Valley Historical Review 20 (1933) 365,373-378, provides a useful thumbnail sketch of Turney's career in Tennessee's gubernatorial politics. Because of his interest in prison reform, a correctional institution for young offenders would later be named in his honor.

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gives them some common object of pursuit. We need not, there- fore, be afraid of drawing the marriage knot, which chiefly sub- sists by friendship, the closest possible."

1 14

Having built a foundation sufficient at least in his own mind to sustain further argument, Turney chose the last part of this sentence-on the drawing of the "closest possible" marital knot-for further comment. 115

There are good social reasons, Turney asserted, for rigorously enforcing the indissolubility of marriage. There was a public interest in the proper selection of marriage partners; and the enforcement of a rigorous stan- dard of indissolubility, he believed, would concentrate the minds of young people contemplating marriage. "[W]e will find male and female not only more cautious, thoughtful and honorable in their affiances and marriages, but much of other crime will fail to publish itself through the Courts, because it shall have passed away."

'"16

After reviewing the significance of human friendship to marriage and the social benefits derivable from a strict enforcement of indissolubility, Turney turned his attention to the question of religious faith: "Every lawyer in the land has been taught not only that the Bible is law, but that it is the source of law. It is found in every complete law library as part thereof, and the standard work therein.""

7

Lawyers, judges, officers of the court, must all take an oath of office upon the Bible."I8 Turney emphasized that this is "so because the Bible is the supreme law."' 19 And the Bible contained the fundamental rules that should govern marriage for all days and ages, including our own:

In this authority, from which every well defined right of person and property is derived, we find-Matthew, chp. 19, verses 3 to 10, inclusive-the law of divorce stated in these words, by our Saviour: "'The Pharisees also came unto him, tempting him and saying unto him, 'Is it lawful for a man to put away his wife for every case?' And he answered and said unto them, 'Have ye not

"14 52 Tenn. at 466 (Turney, J., dissenting). Turney continued, "The amity between the persons, where it is solid and sincere, will rather gain by [constraint]; and where it is wa- vering and uncertain, this is the best expedient for fixing it." Ibid., 466-467. "' Ibid., 467 and repeated again at 468. 116 Ibid., 468. "t Ibid., 470.

l Ibid. "1 Ibid., 471.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 279

read, that he which made them at the beginning male and female, and said, 'for this cause shall a man leave father and mother and cleave to his wife; and the twain shall be one flesh. "They said unto him, 'Why did Moses then command to give a writing of di- vorcement and to put her away?' "He saith unto them, "Moses, because of the hardness of your hearts, suffered you to put away your wives; but from the beginning it was not so."'And I say unto you, whosoever shall put away his wife, except it be for fornica- tion, and shall marry another, commiteth adultery, and whoso marrieth her which is put away, doth commit adultery.''

' 120

Turney viewed the Court as being put to a choice: The Court must se-

lect between "a statutory regulation demoralizing in its every influence and tendency" and "an express divine law."

12 He made it clear that he opted for the Bible and God's law.1

2 2

This constellation of biblical phrases played a major role in justifying other distinctive aspects of the Anglo-American law of domestic rela- tions. Judges and jurists were particularly keen to use the Bible to sup- port arguments in favor of femme covert-the doctrine that held a woman's legal personality to be absorbed into that of her husband's at the time of marriage. 123 Another area of law that looked to this biblical text

120 Ibid., 471-472. 121 Ibid., 472.

122 Another instance in which divine law was invoked was the sui generis case of Arm-

strong v. Berwick Borough Overseers. At issue was an attempt by overseers of a poor

house to separate a husband and wife. The Court rejected this possibility, reasoning: "The

common law declares against it, and the divine law says that after marriage, they are no

longer twain but one flesh, and what therefore God hath joined together let no man put

asunder." 10 Pa.C.C. 337 (Pa.Com.Pl. 1891). 123 See e.g. Bear's Administrator v. Bear, 33 Pa. 525, 526 (1859) ("The doctrine of the

common law was, that the husband and wife are one person, the twain have become one

flesh"); Jacques v. Trustees of the Methodist Episcopal Church in New York, 17 Johns.

548, 582 (1820) (Platt, J., concurring and dissenting) ("I confess that I love and venerate the primeval notion of that mystical and hallowed union of husband and wife: when 'they

twain become one flesh' "); Byrd v. Vance, 158 Ga. 787, 790, 124 S.E. 705, 707 (1924) (looking to the biblical language of "the twain are one flesh" to justify wife's legal dis-

abilities); Madden v. Hall, 21 Cal. App. 541, 549, 132 P. 291,294 (1913) (" 'The oneness constituted by the marriage relation at common law doubtless is based upon the statement

of the Christ, 'For this cause a man will leave his father and his mother and cleave unto his

wife, and they twain become one flesh' (quoting Warr v. Honeck, 8 Utah 61, 66, 29 P.

1117, 1118 (1892)); Pelzer, Rodgers and Company v. Campbell and Company, 15 S.C.

581, 588 (1881) ("To speak in general terms, husband and wife are a unity, or, as it was ex-

pressed by the great law-giver, 'they twain shall be one flesh' "); Drake v. Birdsall and

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for justification was the doctrine of spousal immunity, by which hus- bands and wives might be prohibited from testifying against each other in judicial proceedings, 24 or otherwise forbidden from bringing any cause of action against one another. 25

Company, 10 Ohio Dec.Reprint 56 (Ohio Com.P1. 1887) (speaking of a legislative act that had the effect of limiting the common-law disability placed on wives' contractual capaci- ty, the Court wrote: "[I]t is not to be assumed ... that the Ohio Legislature has undertak- en to annihilate nature, nullify science, enact as law that which is condemned by the Di- vine Law, by human reason, by the common law which is the 'perfection of reason.' "); cf. Corn Exchange Insurance Company v. Babcock, 42 N.Y 613,645 (1870) (rejecting "[t]he old religious idea of a mystic union in marriage, by which 'they twain shall become one flesh' and the doctrine offemme-covert consequent upon this teaching).

124 John Wigmore, in his treatise on the law of evidence, asserted that the oldest justifi- cation for the spousal testimonial immunity was Sir Edward Coke's (1552-1634) declara- tion that "[i]t hath been resolved by the justices that a wife cannot be produced either for or against her husband, quia sunt duae animae in came sua" John Henry Wigmore, Evi- dence in Trials at Common Law, rev. by James H. Chadbourn (Boston: Little, Brown, and Company, 1979) 2:857 (quoting Sir Edward Coke, Commentary Upon Littleton (1628) 6b)). Older cases, generally quoting Coke's Latin, echoed this sentiment. Thus Smith v. Boston and Maine Railroad asserted that Coke's maxim reflected a broader public policy "which regards as of vital importance the preservation of domestic peace and harmony, and the promotion of the unreserved confidence between the husband and wife which the sanctities of that relation require." 44 N.H. 325,334 (1862). In Handlong v. Barnes a New Jersey Court also defended in came una "upon the broad ground of the importance of pre- serving the sanctity of the marriage relation." 30 N.J.L. 69, 71 (1862). Cf. Reeves v. Herr, 59 111. 81, 83-84 (1871). On the other hand, Judge Charles Edward Clark, principal drafts- man of the Federal Rules of Civil Procedure, wrote in 1949: "Admittedly the common-law principle that 'a wife cannot be produced either for or against her husband, quia sunt duae animae in came una ... is gone; indeed, there is none now so poor as to do it reverence." 176 F.2d 564, 569 (2d Cir. 1949) (Clark, J., dissenting). Cf., In re Grand Jury Matter which presented the question whether an offer of prosecutorial immunity overrode the spousal privilege. The Court's majority ruled that the spousal immunity continued to serve important social goods, such "marital harmony." 673 F.2d 688, 693 (3d Cir. 1982). Writ- ing in dissent, Judge Arlin Adams reviewed the history of the privilege, beginning with Coke, to conclude that it should be strictly construed when applicable at all. Ibid., 696-699 (Adams, J., dissenting). 125 The history of spousal immunity from suit, including its foundation in the scriptur-

al interpretation of the early common lawyers as well as early case law, is reviewed in the following articles: Carl Tobias, "Interspousal Tort Immunity in America," Georgia Law Review 23 (1989) 359, 361-441 (a thoroughly researched argument for the abolition of the immunity that cites many early materials). Stephen Kelson, "The Doctrine of Interspousal Immunity: Does It Still Exist in Utah?" Journal of Law and Family Studies 3 (2001) 161, 161-163; Laura Wannamaker, "Note: Waite v. Waite: The Florida Supreme Court Abro- gates the Doctrine of Interspousal Immunity," Mercer Law Review 45 (1994) 903-910, are shorter studies that also look to the religious origins of the doctrine. Reliance on "one

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 281

IlI. Marriage and the State:

A. Marriage is Religious:

This review of the Christian sources of American marriage law reveals a remarkable consistency that has endured over centuries, from the twelfth century until the last two or three decades of the twentieth. From the twelfth century to the middle twentieth, it was acceptable for jurists to refer to marriage as something brought into being through divine in- spiration or guidance. Marriage was of "divine institution." It belonged not only to the law of man to regulate but to the law of God, which brought it into being. From the twelfth century to the middle twentieth, legal writers were willing to look to Scripture for guidance, or at the very least nod in the direction of Scripture when rendering particular judg- ments. To be sure, some of this might have been rhetorical posturing or conventional piety. But the use of this body of words and phrases, im- agery and ideas, spoke to a set of shared cultural understandings that viewed marriage in an expressly Christian context. The presence in American judicial decisions of the nineteenth and early- and mid-twenti- eth centuries of this older vocabulary, in other words, bespoke a connect- edness to a cultural reality that had been formed and nurtured through the rich deposit of historical Christianity.

But while this body of material holds fascination as a worthy subject for an historical investigation in intellectual or cultural history, it also raises profound questions for contemporary lawyers who recognize that law is inevitably an historical process. We have been through upheavals in the last half-century that make this particular body of case law and principles seem as odd and quaint as any museum piece one is likely to encounter at the Smithsonian. No judge, writing in her public capacity, would today speak of the divine institution of marriage, although, obvi- ously, religious traditions continue to subscribe to such beliefs and

flesh" has now largely disappeared; but the philosophy that it expressed-a desire for har- mony and unity between the spouses-can still be found in some cases. Thus the Virginia Supreme Court wrote in 1975: "We are not concerned with the outmoded fiction that a husband and wife are of 'one flesh.' We are concerned.., with a policy and with a rule of law that are designed to protect and encourage the preservation of marriages. Interspousal

immunity is only a part of a whole system of laws and policies which recognizes the mu- tual obligations arising from a marriage and which encourages both marital and family harmony." Korman v. Carpenter, 216 Va. 86, 90, 216 S.E. 2d 195, 197 (1975).

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judges who belong to such traditions might give private acknowledgment to this truth.

126

Why, then, should we recall this history today? What relevance does it have, outside of discrete and insular communities of believers? I might suggest that if we acknowledge the historical reality that western lawyers for a span of years running from the middle twelfth to the early twentieth centuries quite automatically accepted the proposition that marriage had a religious grounding worthy of respect if not enforcement, one is led to ask another question: Is there something about marriage that is irre- ducibly religious? Does this larger western historical experience, only abandoned within the lifetimes of many of the readers of this essay, con- nect to something more universal about the human person and the nature of marriage?

One might attempt an answer to this question by considering findings from the discipline of anthropology. Bronislaw Malinowski (1884- 1952) is still widely considered to be among the most important of the founders of anthropological studies. Born to a Polish university profes- sor and his wife and a member by birth of Poland's landed aristocracy, 127

Malinowski was at home throughout Europe, studying not only in his na- tive Poland but also at Leipzig and teaching for most of his career at the University of London and the London School of Economics. He would, in fact, become a leader of English academic anthropology. He did im- portant field work among the natives of Papua, New Guinea, and the Tro- briand Islanders; and even though details of this field work have been questioned, his larger conclusions-on questions like the necessary rela- tionship between religion, ritual, and the great transitions of human life-birth, marriage, death-remain persuasive today.

Bronislaw Malinowski's research program converged on two of the principal themes of this essay-the centrality of religious belief for human society; and the transcendent significance of marriage to soci- ety's perpetuation.

126 Canon 1059 of the 1983 Code of Canon Law of the Catholic Church declares that Christian marriages are regulated by the divine law and the canon law.

127 Grazyna Kubica, "Malinowski's Years in Poland," in Malinowski Between Two Worlds: The Polish Roots of an Anthropological Tradition, eds. Roy Ellen, Ernest Gellner, Grazyna Kubica, and Janusz Mucha. (Cambridge, UK: Cambridge University Press, 1988) 88-90.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 283

Malinowski was raised Catholic and was a graduate of the Jagellonian University, where his father taught. 128 His earliest published writings re- flected on religious themes. One of his first essays proposed a definition of religion that would remain remarkably constant, with appropriate re- finements, through his later work: "Religion: This is a system of tradi- tions explaining and justifying the world, and a system of norms regulat- ing our conduct."

' 12 9

Although a confirmed agnostic, Malinowski's own work remained saturated with a kind of cultural Catholicism. He thought in terms of the faith of his youth no matter the time and space he put between himself

and his childhood. He appreciated that all religious belief had in common a desire to put the believer in contact with the deity.

130 He used a distinc- tively Catholic vocabulary to describe the social phenomena he ob- served. 3 I And when he witnessed a husband beating his wife while con- ducting field research in aboriginal Australia, he was moved to think of his own wife and recorded in his diary: "association: marriage and spiri- tual harmony."

132

Malinowski was moved to address marriage as an outgrowth of his field work. In his work, he encountered a great variety of forms of "human marriage." Marriage might come in the form of "monogamy, polygyny, and polyandry; matriarchal and patriarchal unions; house- holds with patrilocal and matrilocal residence."

133 Not every society

128 Michael W. Young, Malinowski: Odyssey of an Anthropologist, 1884-1920 (New Haven, CT: Yale University Press, 2004) 73-86.

129 Bronislaw Malinowski, "Religion and Magic: The Golden Bough," in The Early

Writings ofBronislaw Malinowski, eds. Robert J. Thornton and Peter Skalnik, tr. Ludwik

Krzanowski. (Cambridge, UK: Cambridge University Press, 1993) 118. 130 "In all revealed dogma there is always one pragmatic truth: it not only tells us that

totems, spirits, saints, and gods exist, it also demonstrates how by prayer, sacrifice, sacra-

ment, and moral communion we can reach the Divinity." Bronislaw Malinowski, Freedom and Civilization (New York: Roy Publishers, 1944) 209.

131 See, below for instance, his use of "sacrament" to describe marriage.

132 Bronislaw Malinowski, A Diary in the Strict Sense of the Term (Stanford, CA: Stan-

ford University Press, 1989) 176. Malinowski's daughter recalled, regarding her parents'

faith and their marriage: "It was a civil, not a religious, wedding, because neither of them were Christian believers. Bron[islaw], like most Poles, had been brought up in all the rites

and beliefs of the Roman Catholic Church but lost his faith at an early age, an instance where his devout mother's influence failed." Helena Wayne, "Bronislaw Malinowski: The

Influence of Various Women on His Life and Works," American Ethnologist 12 (1985) 529,535.

133 Bronislaw Malinowski, Sex, Culture, and Myth (New York: Harcourt, Brace, and World, Inc., 1962) 3.

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taught that marriage was the sole legitimate outlet for human sexual ex- pression. In many societies, "unmarried boys and girls are free to mate in temporary unions, subject to the barriers of incest and exogamy, and of such social regulations as prevail in their community."' 34 "There are," he acknowledged, "a number of communities in which the marriage bond is broken as regards the exclusiveness of sex with the consent of both part- ners and with the sanction of tribal law, custom, and morality."'

35

In all of this diversity, Malinowski recognized some common elements. Grounding his work on the insights of his old professor Edvard Wester- marck,136 Malinowski asserted: "Even in its biological aspect,... 'mar- riage is rooted in the family rather than the family in marriage."'137 "Mar- riage," Malinowski continued, "on the whole is rather a contract for the production and maintenance of children than an authorization of sexual intercourse."' 38 It is this agreement, Malinowski argued, that carried tran- scendent significance. Marriage, so understood, "has to be concluded in a public and solemn manner, receiving, as a sacrament, the blessings of re- ligion and, as a rite, the good auspices of magic."'13

9

Malinowski elaborated on this theme in a debate he had with Robert Briffault in the early 1930s, which was subsequently edited and pub- lished posthumously by Ashley Montagu in 1956.140 Under the chapter heading "Marriage as a Religious Institution," Malinowski began:

Marriage is regarded in all human societies as a sacrament, that is, as a sacred transaction establishing a relationship of the high- est value to man and woman. In treating a vow or an agreement as a sacrament, society mobilises all its forces to cement a stable union.

4 1

114 Ibid., 4. 131 Ibid., 7.

136 On Malinowski's relationship to Westermarck, see Michael W. Young, "Introduc- tion," in The Ethnography of Malinowski: The Trobriand Islands, 1915-1918, ed. Michael W. Young. (London: Routledge and Kegan Paul, 1979) 4.

137 Malinowski, Sex, Culture, and Myth, 3. 138 Ibid., 4. 139 Ibid., 3. 140 Marriage Past and Present: A Debate Between Robert Briffault and Bronislaw Ma-

linowski, ed. M.F. Ashley Montagu (Boston: Porter Sargent Publishers, 1956). 141 Ibid., 64.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 285

In using the term "sacrament," Malinowski did not intend to refer to the religious observances of the Catholic Church. His intention, rather, was to use this familiar language to make the larger point that historically and anthropologically all societies have attached symbolic significance to the act ofjoining parties in marriage. Malinowski can be understood to have asserted that in every society marriage carries some "sacramental," i.e., religious significance. Symbols freighted with meaning are used to signify the enduring connection formed by the parties-rings perhaps or special garments. 142 The families of the parties are usually intimately in- volved in making the arrangements and planning the ceremonies.

143

Some level of community participation is also expected in solemnizing the special event."1 The parties utter special words signifying their com- mitment and thereby magically transform the relationship. 145 These symbols, these ceremonies, these exchanges of promises, are intended to mark the union off as something of transcendent value, something that the larger society stands ready to protect and preserve, indeed, something for which God or the gods can and must serve as guarantors.

Malinowski, furthermore, admonished those in his own day who wished to desacralize the marital relationship:

Are we to secularise marriage completely and withdraw it from the control of religion, and perhaps even of law, as is the ten- dency in the Soviet legislation and in the program of many would-be reformers?"

146

Malinowski warned against the danger inherent in an intense and com- plete secularization of marriage. Marriage had been "sanctioned by reli- gion, as well as by law.., throughout humanity."' 47 Indeed, in his mind, religion and law had always been interconnected in deep and almost pri- mal ways:

[T]he religious sanctions embrace the legal character of mar- riage, that is, they make it binding, public, and enforced by the organised interests of the community."

1 48

142 Ibid., 65.

143 Ibid. 144 Ibid.

145 Ibid., 68. 146 Ibid., 66.

147 Ibid., 67. 141 Ibid., 70.

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Malinowski acknowledged that he himself did not belong to an identi- fiable religious persuasion. 149 He admitted that agnostics might dispute the connections between religion and marriage, but even agnostics would acknowledge the importance of marriage to community order.

150

Even the agnostic, Malinowski asserted, "must endow the institution of marriage and the family with new values, and so make them stable in his own fashion."'

151

The trend that Malinowski presciently anticipated in the early 1950's-that marriage might be entirely desacralized-is seemingly coming to pass. At the very least, the American legal order is now rigor- ously committed to ensuring the success of this project of desacraliza- tion. While this is not the place for detailed argument, it might suffice to point out that the social crises with which we are faced--divorce, the abortion of nearly 1,000,000 unborn children every year, the widespread incidence of children born out-of-wedlock-may in part result from this larger effort to reduce marriage from a sacred enterprise, blessed, sanc- tioned, and sustained by communal ritual, to something much more mundane, even banal. The consequence of this development has become the disposability of human relationships themselves.

B. The Law Teaches Values:

Not only is marriage in some irreducible sense religious; law, in some fundamental sense inevitably teaches values. This is a major argument made by Mary Ann Glendon in her book Rights Talk.152 Professor Glen- don, of Harvard Law School, did not take up marriage in her book; she wrote, rather, about rights and the ways in which American courts have miseducated the public on the relationship of rights and duties. Her ar- gument, however, is capable of broader application. We should therefore pay attention to her treatment of the judiciary's mistreatment of the ques- tion of communal responsibility and rights, in order to draw some lessons for the domestic relations materials we have already reviewed.

Americans are fond, Glendon observed, of seeing rights as divorced from duties; when they invoke rights, it is usually because they want to

141 Ibid., 71. 50 Ibid., 72.

's1 Ibid. 152 Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press,

1991).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 287

satisfy some individual preference with little thought to larger social consequences.' 5 3 We live, she writes, in "[t]he high season of rights."'

5 4

Comparative law, Glendon notes, quickly reveals how very idiosyncratic American legal rhetoric is on the subject of rights. She compares and contrasts naturalization ceremonies in the United States and Canada.

155

New citizens of each country are commonly addressed by the govern- ment official who swears them in. In the United States, such a speech is likely to emphasize the transcendent significance of individual rights;

156

while in Canada, in contrast, it is likelier that one will be called to take up the responsibility of being a good neighbor to others.

157 Such a cere- mony, Glendon notes, is likely to make a lasting impression on one's mind.

158

A central core of Glendon's book is an analysis of the no-duty-to- rescue rule and its impact on American legal and political thinking.

159

She traces the ways in which this anomaly of American law slowly mi- grated from private law to constitutional law. Teaching that citizens did not owe to others the affirmative duty to come to their assistance in mo- ments of crisis, the no-duty-to-rescue rule taught lessons not only about the narrow principles of tort law,1 60 such as the distinction between acts and omissions as a matter of causation, but broader lessons about the re- lationship of individualism to social responsibility.161

An important part of this larger discussion is Glendon's review of the lessons imparted by the Supreme Court case of DeShaney v. Winnebago

153 Ibid., 3-4. 154 Ibid., 4. 155 Ibid., 12-13. 156 Ibid., 12.

"I Ibid., 13. 158 "Like the words of the marriage ritual, they etch themselves on our memory." Ibid. 159 Chap. 4, "The Missing Language of Responsibility," 76-108.

160 Glendon, Rights Talk, 83. 161 See Glendon's discussion of the case of Jackson v. City of Joliet, 715 E 2d 1200 (7th

Cir., 1983): 89. In that case, a federal court, influenced by the no-duty-to-rescue rule, de-

nied recovery to the families of two automobile accident victims where the suit had been

brought against a police officer who, having happened upon the accident scene, failed to

check for victims or summon assistance, such as paramedics or an ambulance. Citing

specifically Yania v. Bigan, 155 A.2d 343 (Pa. 1959), Judge Richard Posner announced in

Jackson that the Constitution was intended to safeguard negative liberties and was not

meant to provide protection for affirmative rights, even the right to be aided by an officer of the law.

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County Department of Social Services. 162 DeShaney involved a tragic set of facts: Joshua DeShaney was a ten-year-old boy who had been system- atically abused by his father and was ultimately diagnosed with severe brain trauma as a result of this abuse.163 Throughout the period he was abused, officials of the County Department of Social Services stood by, documenting the abuse but failing to take effective action even when Joshua's father failed to comply with conditions he agreed to as the result of recommendations made by a "Child Protection Team" that had inves- tigated conditions in Joshua's home.164

Chief Justice William Rehnquist authored the majority opinion. Sharply distinguishing between negative and affirmative rights and de- claring that the "Due Process Clauses [of the Fifth and Fourteenth Amendments] generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or prop- erty,' 165 the Chief Justice's opinion can be read very nearly as a constitu- tionalization of the no-duty-to-rescue rule. 166 Although the County's so- cial service agency had commenced intervention in Joshua's home life, it was under no constitutional obligation to ensure a favorable outcome. It had, in other words, no constitutionally cognizable duty to rescue Joshua from his violent surroundings.

What makes this case relevant to our concerns is the method Mary Ann Glendon used to draw lessons from it. She criticized Rehnquist's opinion less on its substance than on the errors it was likely to teach the Ameri- can public.' 67 Supreme Court opinions have a wide audience: not only lawyers, but journalists, intellectual and social historians, and a large number of literate lay persons now read leading Supreme Court opin- ions. And these readers are likely to understand DeShaney to stand for the proposition that there is a sharp separation between a public order, where government is responsible for policing its own business, and a world of private ordering, where "the weak [are] completely at the mercy of the strong."'168 And by implying that the no-duty-to-rescue rule gov-

162 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). 163 Joshua suffered "a series of hemorrhages caused by traumatic injuries to the head

inflicted over a long period of time". Ibid., 193. 164 Ibid., 192. 165 Ibid., 196. 166 Glendon, Rights Talk, 97. 167 Ibid., 94-97. 168 Ibid., 95.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 289

erns the government's relationship to its citizens, "the DeShaney case mis-educates the public about the American version of the welfare state, and about the role of citizens in shaping and reshaping it."' 16 9 DeShaney, in other words, while perhaps correct as to its legal reasoning, is a failure because of the lessons the larger American public may derive from it.

Transposed to marriage, Glendon's methodology has much to offer us. If legal opinions necessarily educate, what are the lessons to be learned from the cases and material covered in this essay? The first, most obvi- ous, lesson is the primacy of marriage in the ordering of society. Mar- riage was so important that a whole series of divine invocations was con- sidered necessary to explain it. Marriage was a part of the divine plan for the world; it was a feature of the divine law; its particular attributes, such as the levitical degrees, were a feature not only of the law of man but of the law of God. Proper marital conduct was not only a matter of one's re- lationship with the state, but with the deity. Marriage, one can conclude, was seen as supremely important to social well-being.

There were yet other lessons taught by these cases and materials. It can safely be said that America in the nineteenth century was still governed by a Protestant establishment, whose presence was felt defacto if not al- ways de jure. Christianity was accepted as a source of the common law; and judges and jurists were not shy about drawing from conventional Christian sources to explain whole areas of law. 0 Christian, biblically- grounded modes of discourse thus helped to cement this Protestant hege- mony with respect to marriage law and transmit it forward in time, to the next generation. And in a nation most of whose citizens were also Protes- tant, this must have seemed like a natural mode of discourse. This Chris- tian foundation, furthermore, was not something recent, made up by the courts in response to the exigencies of current events, but had deep roots in the distinctive legal tradition of medieval canon law particularly as mediated through Anglicanism.

If the body of opinions and texts examined in this paper teaches one lesson with respect to marriage and its centrality to society and faith, it teaches another lesson with respect to the authority of the state. To speak of divine law is to speak at the same time of a law placed above the pos-

169 Ibid., 97.

170 An important new study of some these themes is Michael V. Hernandez, "A Flawed

Foundation: Christianity's Loss of Preeminent Influence on American Law," Rutgers Law Review 56 (2004) 625-710.

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itive enactments of the state. It was Peter, after all, who proclaimed to the Sanhedrin "We must obey God rather than men."17 1

Marriage, seen as a matter of divine or natural law, understood as a matter of divine institution, explained as the product of divine command, explicated by the Jesus of the New Testament as conferring deep and solemn duties on its participants, necessarily stood to some extent be- yond the state's authority to harm, destroy, or alter. Marriage was not a creation of the state. Its existence pre-dated the state. It was something state authorities were charged with conserving. The judicial invocations of divine law that accompanied so many domestic relations decisions can be understood as reinforcing these propositions and commitments to state officials from governors, to legislators, to administrators, all the way to local justices of the peace and town clerks.

One can contrast the lessons these historical materials teach with the lessons one might derive from a passage in Goodridge v. Department of Public Health, the Massachusetts same-sex marriage case of 2003.172 About the relationship of marriage to the state, this Court wrote: "Simply put, the government creates civil marriage. In Massachusetts, civil mar- riage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution." 173 This statement, like the major- ity opinion in DeShaney, mis-educates the public. As a description of the historical reality this article has been discussing, Goodridge's claim can be seen to be patently false. Its temporal framework is bizarre. One liter- ally cannot make sense of the assertion that civil marriage has been a cre- ation of the state since "pre-Colonial days." Surely, the Court cannot mean to refer to the forms of marriage that prevailed among the Narra- gansett Indians who greeted the first European settlers, although that is what the Court must literally be understood to say.

The Goodridge Court's description of marriage, furthermore, is erro- neous on at least two other counts. The sharp distinction between "civil" marriage and something else, which the Goodridge Court never names but must presumably be religious marriage, similarly misrepresents the early sources we have reviewed. The nineteenth-century American law of domestic relations, even in Massachusetts, was heavily dependent

7I Acts 5:29. 172 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003). 171 Ibid., 321, 798 N.E.2d at 954.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 291

upon Christian sources, especially canonistic sources. This paper has re- viewed a few of those sources. It is a distortion of the historical record to call marriage "a wholly secular institution."

It is wrong, finally, to assert, as a matter of historical record, that the state creates civil marriage. As the evidence we have reviewed makes clear, this is not the way the nineteenth-century mind understood the ori- gin of marriage. Indeed, the forms of legal discourse we have been ex- ploring, invocations of divine law or the law of God to explain particular features of the law of marriage, were not unknown to Massachusetts. Massachusetts jurists were not unlike their contemporaries in borrowing from Christian understandings of marriage, especially as mediated through the ecclesiastical courts, to explain the shape and content of their domestic relations law. 1

74

Goodridge, in its own way, is thus at least as pernicious as the De- Shaney opinion in its mis-education of the public. Its history lesson, re- grettably, will not be confined to the practicing bar of Massachusetts. Lawyers and literate lay people alike, all over the country, will under- stand it to be a roughly accurate depiction of historical truth. In reality, it is as flawed as DeShaney's attempt to constitutionalize the no-duty-to- rescue rule.

C. Law Has a Religious Dimension:

At the outset of this paper, I proposed a definition of religion borrowed from John Noonan which had as its core the relationship of the believer with the divine presence. 17 5 Harold Berman, in his book, The Interaction of Law and Religion, has proposed a different definition that is also ap- propriate for analyzing the relationship of religion and law.

176 Religion, Berman writes:

174 See, e.g., Martin v. Commonwealth, I Mass. 347, 398 (1805) (addressing the obli- gations of women married to British sympathizers during the Revolutionary War, this

opinion declared that by "they owed [a duty of obedience] to their husbands" "by the law

of God," and were thus under no obligation to abandon them as a condition of retaining

property rights in Massachusetts); Sutton v. Warren, 51 Mass. 451, 452 (1845) (declaring incestuous marriages invalid as "against the laws of God"); Pratt v. Pratt, 157 Mass. 503,

506 (1892) (declaring an intention to incorporate into Massachusetts divorce law the rules

governing "collusion, connivance, condonation or recrimination, all of which we have

adopted into our procedure from the canon and ecclesiastical law of England"). 175 See note 7.

176 Harold J. Berman, The Interaction of Law and Religion (Nashville, TN: Abingdon

Press, 1974).

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is not only a set of doctrines and exercises; it is people manifest- ing a collective concern for the ultimate meaning and purpose of life-it is a shared intuition of and commitment to transcendent values. 177

Law, Berman continues, must necessarily partake of religious values, understood in this broad, anthropological sense. Through the use of rit- ual, through appeal to tradition and authority, through invocation of uni- versal values, law attempts to concretize and apply a given society's set of beliefs about ultimate values. 178 Berman challenges those who would view law in purely secular terms. The great fallacy of a purely secular ac- count of the law is its abandonment of ultimate values: "The law of the modem state, it is said, is not a reflection of any sense of ultimate mean- ing and purpose in life; instead, its tasks are finite, material, imper- sonal-to get things done, to make people act in certain ways."'179

Berman further characterizes this understanding of law as "instrumen- talist."' 180 The law-giver-whether legislator or judge-takes a narrow view of those subject to the law. Persons, the law-giver surmises, will re- spond in certain predictable ways to laws intended to appeal to widely- held notions of cost/benefit analysis. Laws are tailored accordingly, to place incentives for desirable conduct and to discourage the undesirable. Such efforts, furthermore, always carry with them a sense of tentative- ness: the law comes to be seen as "experimental;" its values, its norms, its prohibitions and permissions, are seen as always subject to revision, based on the latest fashionable economic or political theory of what so- ciety should be about. 181

The problem with this sort of instrumentalism, in Berman's estima- tion, is its failure to conform with human nature. Instrumentalists gener- ally assume that law gains its force through its threat of coercive force.18 2

This assumption has been part and parcel of modem legal positivism since John Austin first formulated his command theory of law in the early nineteenth century. Such a theory of law, however, runs afoul of the nat- ural human tendency to obey law not because of the threats that accom-

177 Ibid., 24. 178 Ibid., 25. 179 Ibid., 26-27.

0 Ibid., 27. 181 Ibid., 27-28. 182 Ibid., 28.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 293

pany disobedience, but because of the belief that one thereby does some- thing affirmatively good by obeying:

As psychological studies have now demonstrated, far more im- portant than coercion in securing obedience to rules are such fac- tors as trust, fairness, credibility, and affiliation.

183

The sense of trust, furthermore, is enhanced by the very nature of law:

Law itself, in all societies, encourages the belief in its own sanc- tity. It puts forward its claim to obedience in ways that appeal not only to the material, impersonal, finite, rational interests of the people who are asked to observe it, but also to their faith in a truth, ajustice that transcends social utility-in ways, that is, that do not fit the image of secularism and instrumentalism presented by the prevailing theory.

184

Berman concludes that instrumentalist understandings of law- theories of law that rest, fundamentally, not on a shared sense of right and wrong but only on second order pragmatic principles-will ultimately prove unworkable. 185 To be successful, to command respect and alle- giance, the law must embody what Berman terms "transrational" values, including a sense of tradition and authority. Neither, Berman asserts, can be explained exclusively in secular terms. Tradition necessarily carries a religious dimension as mythic significance is ascribed to past events,

86

while invocations of authority usually carry with them some sense of judgment about ultimate right and wrong. 1

87

This understanding of the deep interconnectedness of law and religion helps to explain the survival of references to divine law and the law of

God in early American judicial thought. Appeals to rules ordained by God, articulated in a world where ownership and knowledge of the King James Bible was perhaps the single strongest common bond among per- sons, can certainly be understood as an effort to inculcate in the populace a deeply internalized sense of proper and improper marital conduct.

183 Ibid.

184 Ibid., 29. Berman adds, "Even Joseph Stalin had to reintroduce into Soviet law ele-

ments which would make his people believe in its inherent rightness-emotional ele-

ments, sacred elements; for otherwise the persuasiveness of Soviet law would have total-

ly vanished, and even Stalin could not rule solely by threat of force." Ibid. 185 Berman, 30. 186 Ibid., 34.

187 Ibid., 34-35.

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Berman's insights also reveal the deep incoherence of contemporary philosophical liberalism, especially when applied to reform of the mar- riage law to accommodate the same-sex marriage movement. One might consider a recent essay by Linda McClain. 188 Her target was Congress- woman Marilyn Musgrave of Colorado's Fourth District, a Pentecostal and a principal sponsor of an amendment to the United States Constitu- tion that would have the effect of enshrining in fundamental law the proposition that true marriage only exists between a male and female. The particular focus of McClain's criticism was Musgrave's assertion, made in defense of the amendment, that it was needed to preserve "'God's created order."" 189

McClain rejected the premise on which these statements rested: that there is no tight boundary line separating religious from secular concep- tions of marriage. Looking in part to Goodridge, McClain countered:

[I]n a pluralistic constitutional democracy, citizens owe each other certain duties of civility and mutual respect concerning the forms of argument they make. Thus, government's interest in defining, regulating, and supporting the institution of civil mar- riage must be explained in terms of public reasons and political (or public) values that are accessible to other citizens regardless of whether they share each other's religious convictions.1 90

McClain is far from alone in advancing such claims. William Es- kridge, professor of law at Yale University and a leading advocate for

188 " 'God's Created Order,' Gender Complementarity, and the Federal Marriage Amendment," BYU Journal of Public Law 20 (2006) 313-343.

"' Ibid., 314 (quoting Marilyn Musgrave). In the 2006 congressional debate over same-sex marriage Musgrave was not the only one to make such a claim. McClain also identifies Congressman Steven King of Iowa and Mike Pence of Indiana, who made sim- ilar claims. Ibid., 317-319. In her House testimony, Musgrave declared: "The self-evident differences and complementary design of men and women are part of [the] created order. We were created as male and female, and for this reason a man will leave his father and mother and be joined with his wife, and the two shall become one in the mystical, spiritu- al, and physical union we call 'marriage."' House Judiciary Committee, Subcommittee on the Constitution, Hearing Testimony, May 13, 2004, 108th Congress (statement of Mari- lyn Musgrave, Chairman). Her Senate testimony for the most part tracks closely her House statement, although Musgrave added: "[M]arriage is a sacred institution, designed by the Creator [as] the union of a man and a woman." Senate Judiciary Committee Hear- ing on Same-Sex Marriage, June 22, 2004 (2004 W.L. 1413039 (F.D.C.H.).

90 20 BYU J. Pub. L. at 328-329. See also McClain's older essay, "The Relevance of Religion to a Lawyer's Work," Fordham Law Review 66 (1998) 1241-1252.

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same-sex marriage, relies on a robust theory of philosophical liberalism to argue that the Constitution was intended to create a liberal state ag- nostic as to claims about fundamental goods or ends. 19' Like McClain and like many others in the field, Eskridge relies on claims about "public reason" that have the effect of prohibiting in advance the possibility of distinctively religious voices even entering the public square.'

92

The not-so-hidden danger in these claims is precisely the risk Berman warned against-the replacement of norms that reflect deeply-held con- victions of right and wrong with a series of second-order, instrumentalist claims about the shape marriage law should take.

From a constitutional perspective, perhaps the most appropriate an- swer is John Noonan's response that the believer who relies on religious belief to reach a particular public policy position does nothing different from "any conscientious citizen or politician who consults the source of truth he holds in highest regard."'19 3 What is protected by the Constitu- tion, in Noonan's estimation, is the right all persons to participate in the political process, not the right of the non-believer to be free of the an- noyance of having to confront religious claims of truth.' 94

Were this a longer study, we might develop this point. We should con- tent ourselves with the observation that if marriage is religious, not nec- essarily in a confessional but at least in a larger anthropological sense of that word, so then is law. Law reform that seeks to de-sacralize marriage, to make it subject to ordinary contract rules, to separate its religious di- mension from its civil effects, will probably fail. Indeed, the crisis over out-of-wedlock births, the levity with which the marital commitment is taken, the easy availability of divorce, might all be seen as outgrowths of this de-sacralization.

De-sacralization of the law, however, may carry even deeper conse- quences. The separation of law from deeply-cherished beliefs about right

191 William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay

Rights (New York and London: Routledge, 2002) 129-13 1. 192 Ibid., 129. 193 John T. Noonan, Jr., "The Bishops and the Ruling Class: The Moral Formation of

Public Policy," in Religion, Science, and Public Policy, ed. Frank T. Birtel (New York: Crossroad, 1987) 138, 141. 194 Noonan continues, "Every public policy is an imposition on some persons, some

groups. Pluralist democracy does not mean freedom from such impositions, but freedom to participate in the process. The Church, through the actions of Catholics, is free to be a participant." Ibid.

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and wrong might lead to societal demoralization as the people become alienated from the law.

Let us consider for a moment the issue of alienation. The concluding pages of Alasdair Maclntyre's After Virtue draw a stark picture of the role alienation played in the collapse of the civil polity of the Western Roman empire, as people turned their back on imperial rule:

A crucial turning point in that earlier history occurred when men and women of good will turned aside from the task of shoring up the Roman imperium and ceased to identify the continuation of civility and moral community with the maintenance of that im- perium. What they set themselves to achieve-often not recog- nizing fully what they were doing-was the construction of new forms of community within which the moral life could be sus- tained .... 195

Where the state and its law fail, where it has grown so out of touch with human needs and emotions that it ceases to command loyalty, one might read Maclntyre as saying, then it falls to the people to build their own communities responsive to their own values, independent of state authority. The marriage debate may hold within it the seeds of this ex- treme form of alienation from the realm.

IV Conclusion:

This paper has touched on themes drawn from legal history, anthro- pology, and jurisprudence. If there is a common thread to this paper, it is this: that the separation of marriage from religion, or from the state, is a much more difficult task than it might appear at first blush. Marriage has been associated, within the western tradition, for nearly two millennia, with religious insight, particularly that drawn from or inspired by the Jewish and Christian holy books collectively called "The Bible." Much of this paper has been concerned with exploring various aspects of the re- lationship of this larger western tradition with the idiom of American do- mestic relations law.

Even apart from this historically peculiar feature of the West, all mar- riage has a religious dimension to it that is probably unavoidable. In all societies, marriage is signified by some form of symbolic action or ex-

195 Alasdair Maclntyre, After Virtue, 2d ed. (Notre Dame, IN: Notre Dame University

Press, 1984) 263.

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change; it reflects commitments not only by the individuals involved, but by larger communities, whether they be family, church, locality, or some- thing larger or smaller than these groups. Marriage is a commitment that embraces not only the good of the parties, but points to something larger-a given society's sense of the ultimate.

The lessons that law-givers seek to inculcate in those subject to the law, furthermore, are also important. Law teaches values-this is an in- sight as true for the law of marriage as for any other branch of the law. How society structures the laws governing coupling, commitment, child- rearing, and other essential functions of the reproductive process teaches values about these aspects of daily life. The current debate over the future path of marriage is at least in part a struggle over the proper lessons to be taught by the law.

Finally, law itself points to a larger substantive vision of the good. For this reason, some, like Harold Berman, argue that the law itself has a re- ligious dimension that we deny at the risk of imperiling the soundness of a society's legal order. And this religious dimension of law, this sense that the law must embody some larger, more transcendent understanding of right and wrong, also lies behind and animates much of the contem- porary debate over marriage. Legislative or judicial attempts to sever the traditional bonds among marriage, religion, and law, are, for these rea- sons, doomed to failure, in either the short or the long term.