Marriage is a Contract

Texas marriage license and certificate, 1879; the couple was married by a justice of the peace, not a clergyman - which made it a legal marriage just as good as any celebrated in church.

I've blogged about this a time or two before, but since a couple of you fellas have touched on this point in some recent comments, seems a good time to put the legal definitions out there so everyone can make use of them as need be.

One big huge ginormous problem with the whole marriage debate is that our oh-so-holy religious kin, friends, and neighbors have got the idea so strong in their heads that marriage was invented by the Christian Church, and is thus The Will of God and eternally unchangeable - and moreover has always and everywhere been exactly the same thing it is right now, except of course for those nasty, perverted, pagan places like Spain, Canada, and Massachusetts.

Wrong.  Dead wrong.  Even your Bible shows you, knucklehead, that people were marrying long before Jesus ever walked the earth.  "Well, the Hebrews started it then, when God gave them the Ten Commandments."  Wrong - don't you ever go to Sunday School, you heathern?  Jesus himself said, "in the days that were before the Flood they were eating and drinking, marrying and giving in marriage, until the day that Noah entered into the ark" (Matthew 24:38). Before the Flood. You ain't a-gonna argue with the Lord, are ya bubba?  Though there is some folks I've knowed who was just so bullheaded, they would argue with Jesus Christ hisself.


So then, going just strictly by the Bible, you see there was plenty of marrying going on away long before the time of Christ, long before the Ten Commandments, long before Moses or even Abraham.  Long before there was any notion whatsoever of a Christian Church, and long before there was any idee of a Hebrew religion, even.  You can check out Genesis for more references to marriage and husbands and wives, including ol' Noah hisself, who natcherly took his wife along in the boat with him - not to mention his sons and their wives.  You do remember that story, don'cha bud?

There was also marriage going on in every other place on the face of the earth too, whether God liked it or not - you remember who tempted Joseph, don't you?  That's right - the wife of Potiphar, an Egyptian woman.  So marriage wasn't something the Hebrews dreamed up all on their own. 

"Oh well it doesn't matter, because marriage has always been the same, and I want to keep it just like it was in the Bible."  Izzat right, friend?  Well now, how 'bout you consider the fact that Abraham, Jacob, Gideon, David, Solomon, and a lot more of them old boys had several wives, and concubines too - and nobody thought a thing in the world about it, including God himself, who actually encouraged that kind of thing with some of them. 

"Oh but Jesus changed all that." Well now if you're a-gonna start quoting Jesus, how about this saying from his own mouth: "Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery" (Mark 10). But say, bubba, that didn't stop you from trading in your old lady for that purty little blonde you got a-stirring your grits now, did it? And you ain't felt a minute's guilt about any o'that, have you bud? Still setting up there in the pews, front and center ever Sunday morning, pleased as punch with yourself, ain't ya?

So enough with "thuh Bye-bul says" routine; it's plain as day from your own scripture that marriage - of all kinds and stripes and shapes - was going on long before there was ever a Christian to be seen on the face of the earth, and also that you straight boys have done just exactly as you please with the rules of it, in every century and in every clime.  So just sit down and shut up about it now.  You might learn something.

Continued after the jump . . . .

Now that we have the spurious Christian origins of marriage out of the way, we can examine the definitions of civil marriage in the Anglo-American legal tradition.  It is true that in Western Europe the Catholic Church assumed authority for solemnizing marriages, sometime after the end of the Roman Empire - which had a huge amount of jurisprudence on the subject dating back long before the time of Christ, and in which there existed at least three different kinds of marriage - and furthermore, under whose laws, at least until the Christians took over, it was indeed possible for men to marry men under the usual legal formalities, as witness the marriages of the Emperor Nero, as well as his much later successor, Egalabalus.  Neither of whom, I regret to say, had very admirable characters - but there were other, more laudable emperors known to have had same-sex lovers or partners, the most famous of whom was the Emperor Hadrian, whose grief at the death of his lover Antinous is well known.  Furthermore, the practice was not limited to the imperial court, as the satires of Juvenal - or was it the epigrams of Martial, off the top of my head I'm just not sure at the moment - or maybe it was both of them - make clear by references to same-sex marriages among the ordinary citizenry.

Harmodius and Aristogeiton

How popular or socially acceptable that was, scholars debate over.  But few or many, same-sex marriages did occur in imperial Rome.  And long before that, same-sex couples were a widely accepted part of the landscape for hundreds of years in Greece, where there were some shrines at which those couples pledged their love in a formal way, it seems, or some of them did, at least. There was even a statue in downtown Athens of the two men - lovers - who killed some tyrant's brother and started a revolution that made Athens safe for democracy again. Or something like that; the story don't translate so well into English, but there they were forever after, immortalized there in the public square, bigger than life, as an example to little Greek boys and girls of courageous patriotism - and nekkid as jaybirds they were, too.

Some philosophers wrote that same-sex love was the most divine and noblest kind, much better than male-female stuff, which was necessary for posterity of course, but degrading and boring.  There were also some ancient writers who argued that same-sex love was all unnatural and icky and shouldn't be allowed . . . just like today, only they didn't have a Bible to beat you over the head with, and 24-hour talk radio hadn't been invented yet, so most folks just shrugged their shoulders and said whatever and minded their own business.

But I digress.  You can google up or wiki up all about what I just mentioned, but imperial Roman law has never had any application in this country, and neither have the decrees of the Council of Trent, which codified Roman Catholic teaching and practice on the subject.  My purpose here is to provide the definition of marriage as a legal contract as it's been understood in these United States from the get-go (omitting some technical details of interest only to scholars of the law), so let's begin with Blackstone's Commentary on the Laws of England, 1765, which for many years was considered the definitive summary of English law:

Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience.

Next, an American source, Bouvier's Legal Dictionary from the 1850's, found at 'Lectric Law Library:

MARRIAGE. A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.

To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted.They must be willing to contract. Those persons, therefore, who have no legal capacity in point of intellect, to make a contract, cannot legally marry, as idiots, lunatics, and infants; males under the age of fourteen, and females under the age of twelve; and when minors over those ages marry, they must have the consent of their parents or guardians. . . .

The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium, that consent is all that is needful by natural or public law. If the contract be made per verba de presenti [in words of the present tense], or if made per verba de futuro [a promise to marry at a future time], and followed by consummation [= sexual intercourse], it amounts to a valid marriage, and which the parties cannot dissolve, if otherwise competent; it is not necessary that a clergyman should be present to give validity to the marriage; the consent of the parties may be declared before a magistrate, or simply before witnesses; or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or public prosecutions for bigamy. . . .

Marriage is a contract intended in its origin to endure till the death of one of the contracting parties. It is dissolved by death or divorce. . . .

Notice that under the common law of England, which we inherited as colonies, no priest, no preacher, no ritual, no ceremony at all was necessary to make a marriage - just the agreement of the two parties involved.  Though of course, Parliament over there or state legislatures over here could - and in the course of time did - pass laws adding more requirements than the common law had.  (Which is why only a handful of states recognize common-law marriage nowadays.)

Now, just to make the point clear, a more modern definition from Cornell University Law School, which still says the same thing, basically - hey bubba, stop that snoring, sit up straight and listen to this:

In the English common law tradition, from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house. The wife's obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. Today the underlying concept that marriage is a legal contract still remains but due to changes in society the legal obligations are not the same.

Marriage is chiefly regulated by the states. The Supreme Court has held that states are permitted to reasonably regulate the institution by prescribing who is allowed to marry, and how the marriage can be dissolved. Entering into a marriage changes the legal status of both parties and gives both husband and wife new rights and obligations. One power that the states do not have, however, is that of prohibiting marriage in the absence of a valid reason. For example, prohibiting interracial marriage is not allowed for lack of a valid reason and because it was deemed to violate the Equal Protection Clause of the Constitution.

And this advisory from the Washington State Bar Association, which would be essentially the same in any of the fifty states:

When you sign a marriage certificate, for example, you are signing a legal and binding contract. Specific conditions must be met and, like other contracts, a marriage creates certain rights and duties for each partner. Because the state is a party to the contract, court approval is required to change or end a marriage.

Note:  when we say marriage is a contract, we are not talking about a premarital or prenuptial contract - that's a horse of a different color.  No, the marriage itself is a legal contract - you may or may not want to get married in church in front of a preacher and consider it a religious marriage too, but the law takes no notice of the religious ideas you drape over your marriage.  Which is a good thing, for reasons that are just plumb obvious to anyone with a lick o'sense - ain't that right, bubba?

Nobody has to get married in church.  You don't even have to believe in God to get married.  The two atheists who get hitched by a county clerk down at the courthouse are just as married in the eyes of the law as the couple who get married at the high altar of St. Peter's Basilica by the Pope himself - or by the Grand High Lama or by Parson Jones.  Those who do marry in church are taking on a religious marriage at the same time as a civil marriage - and much good may it do them - but the law recognizes only the civil marriage, as I hope the above definitions make clear.

And, as far as I understand the subject, just like any other contract - for a car, a house, a horse, a motorcycle - or, in actual fact, the contract you make every time you walk into Mickey D's and lay your money down for a Big Mac - yup, that's a contract, yessiree - civil marriage involves all the standard elements of a legal contract:  an offer, acceptance, consideration, competence, consent, and legality.  Which you can read all about here, if you ain't dozed off yet like Bubba over yonder.  That boy never could pay attention to nothin' longer'n it takes to swat a fly off your nose.

I hope this helps.


***Disclaimer:  your Head Trucker ain't no kind of lawyer, and no part of this post or this blog should be considered legal advice in any way, shape, or form.  Presented strictly for information purposes . . . and a little entertainment around the edges.  If'n ya do need legal advice, go find yourself an attorney.  But not one named Bubba.***