Changing Definitions of Marriage : Past, Present, and Future


Plebiscite versus a Free Parliamentary Vote

There is a lot of hand-wringing in Australia at the moment about the prospect of extending heterosexual marriage rights to homosexual couples, and in the coming months one can be assured it's going to get worse. The Federal government is determined to spend an estimated $160 million AUD [1] on a non-binding plebiscite, with the Prime Minister claiming that "the fastest way to guarantee that there is a vote in the Parliament on gay marriage in this Parliament, is to support the plebiscite" [2] - apart from actually holding a free parliamentary vote, he should have added. In engaging in this subject some often amusing correspondence has been entered into; both with the former MP for Tagney, Dr. Dennis Jensen, whose opposition to marriage equality was based on the inability to breed (which generates some truly delicious contradictions), and Dr Michael Jensen, Rector at St Mark's Anglican Church, Darling Point, who struggled to provide genuinely secular reasons for his opposition and was sincerely troubled that he might be a bigot. It is assumed that their mutual surname is coincidence; the genetics of ideology are not that strong.

For their part, the Federal opposition, with support from the minor parties, has expressed a commitment to block the plebiscite on the grounds that other changes to the Marriage Act have not required a plebiscite, and nor should this one, and a parliamentary vote should be held instead. Whilst this position does have the support of nearly all marriage equality advocates, and would almost certainly pass if a free vote was held [3], or if a plebiscite was held [4], the possibility exists that whilst the opposition and its allies could block a plebiscite, they also lack the numbers to force a free parliamentary vote - thus leading to the scenario where there is still no vote on marriage equality until the next parliament. This of course is an ideal situation for opponents of change who are almost certain to lose in either situation, now and in the future, are determined to delay when they lose for as long as possible.

One of the comments that has been currently raised in the context of this debate is that the proposal for marriage equality is some sort the a radical change to what marriage means. Which of course raises the question, what does marriage mean? What has it meant in the past? What does it mean now? What will it mean in the future? Peter Costello said in 2003, that the current legislation has "always been the understanding of marriage" [4], and at the same time former Prime Minister John Howard, said that preventing marriage equality was "not in any way an attack on gay people, quite the reverse..." [5], which is a very interesting proposition which will perplex logicians for some years to come, whereas former Prime Minister Tony Abbott, more recently argued "Now, they [same-sex couples"] demand as their right what they recently scorned; they demand what was unimaginable in all previous times [6]. In reality, the further one investigates this as sociology, as history, as cultural anthropology, and even as futurology, the greater the discovery that the definition of marriage has changed a great deal both within and between cultures, and will do even further into the future.

Historical and Traditional Culture Marriage Systems

Defined broadly, marriage is a cultural universal. That is, all societies have some sort of ritual or legal contract between parties which establishes certain obligations between each other and other associations so defined, to establish family relations. These obligations often incorporate as aspect of sexual interpersonal relationships and distribution of personal and private property. It is usually also associated with determining legitimacy of offspring in heterosexual unions, and associated family membership and property rights that go along with that. Apart from this however, as anthropologists have determined, there is enormous variation between who can marry who, how it is arranged, what age that people can be married, and what the sexual orientation of the partners must be.

How many partners are involved in a marriage? The Ethnographic Atlas [7] study of 1,231 societies noted that 186 were monogamous; 453 had occasional polygyny; 588 had frequent polygyny; whilst only 4 had polyandry. The relatively low number of societies that practise polyandry compared to polygyny is certainly at least in part due to the gendered distribution of wealth, and the actual practise of polygyny is less than the numbers indicate as additional wealth is required to sustain multiple wives, and further complicated where such practises are technically illegal but still occur as a cultural norm [8]. Another complexity is that most monogamous societies allow for a serial implementation, that is, one partner in marriage at a time - with multiple potential partners over a lifetime depending on death or divorce. In addition to this in traditional Hawaii the relationship of punalua was a form of group marriage as did the Kroki, Kumite, and Tiwi people of indigenous Australia, and the Nivkh people of Sakahalin Island [9].

For those who prefer the Biblical tradition, Abraham had three wives (Gen 16:1-3, 25-1), David had at least ten wives and concubines (1 Samuel 18:27, 1 Samuel 25:39, 1 Samuel 25:43-44, 2 Samuel 3:3-5 etc.), and King Solomon "had seven hundred wives of royal birth and three hundred concubines" (Kings 11:3). If a man "lay hold" on an unmarried woman and is discovered, he must pay her father fifty shekels and marry the woman, with no possibility of divorce (Deuteronomy 22:28-29) - this is meant to be punishment for the man, by the way. The victim's opinion in this matter is not of consequence. If a man dies, his brother shall marry the widow (Deuteronomy 25:5); and you can absolutely forget about mixed-race marriages, except of course, as spoils of war (c.f., Genesis 24:3-4, 25:23, 28:2, Deuteronomy 7:1-3, 23:2, Ezra 10:2). If a married woman is discovered not to be a virgin, she shall be stoned to death, likewise executed are those who commit adultery, and a woman and her lover is she is engaged to another man (Deuteronomy 22:20-24) will also be executed. One wonders if the advocates of a "traditional biblical marriage" have really thought this through.

Another cross-cultural norm of traditional marriage was arranged betrothals and child brides, with girls being married at far greater proportions than boys, which also is explicable through gendered property relations. Dating back from the Code of Hammurabi from ancient Babylon, dating back almost four thousands years, are explicit rules for the payments of dowry and bride price. Poorer families would often betroth their girl as soon as they had the resources to pay the dowry, and conversely, where a bride price exists, a further incentive exists to poorer families to effectively sell their young daughters [10]. The practise of dowry and bride price was carried out in ancient Greece, Judaism, the Roman empire, China, and arguably in India, and with bride price alone in Islam (Mahr). Traditionally religious authorities have determined the age of marriage; Christian ecclesiastical law, Islamic religious law, and Jewish rabbis typically discouraged the marriage of a girl before the age of puberty, whereas the Vedic scriptures propose the age of a girl's marriage to be three years after the onset of puberty. Indeed it was really until the 20th century CE that there was a substantial movement to raise the minimum marriageable age. Today, whilst subject to significant international campaigns, the minimum marriageable age is between 16 and 18 in most countries, but with child marriages persisting in some sub-Saharan countries; in Niger, Chad, Bangladesh, Mali and Ethiopia there child marriage rates greater than 20% below the age of 15 [11]. There is extensive and overwhelming research which indicates that girls in child marriages are more likely to suffer from domestic violence, marital rape, complications from pregnancy and childbirth, illiteracy, and enduring poverty [12].

Traditional marriage advocates may not be particularly keen to discover that same sex unions have been known throughout history, at least in cultures where such practises weren't persecuted. Same sex unions was certainly known in ancient Mesopotamia, Egypt, Greece and Rome, and in the Ming and Zhou periods of China, and among some 130 indigenous cultures of the Americas as "Two-Spirit" people, with the Chamush, Lakota, Navajo, Winnebago, and Zuni being the especially well known [13]. The Christian churches, Orthodox and Catholic, had a religious ceremony for men, Adelphopoiesis, or brother-making, which has been described by researchers as a form of same-sex marriage [14]. It must be mentioned that such relationship were subject to the same political hierarchies and inequalities of other traditional societies. In Greece and Roman it is well-documented that the male same-sex relationships were often between older men and adolescents and sometimes even prepubescents. There are other marriages in historical and traditional cultures which we would consider quite unusual to say the least. Marriage between siblings was common in ancient Egypt and Greece, with Cleopatra VII marrying her brother Ptolemy XIII, while her mother and father, Cleopatra V and Ptolemy XII, had also been brother and sister.

Contemporary Marriage in Advanced Societies

As has been previously mentioned in the early twentieth century moves were made to raise the basic marriageable age from bare puberty, and, as logical corollary, the age of consent. One notable exception was the French Napoleonic Code of 1804 set the marriageable age was set at 15 years for women and 18 for men. The United Nations 1962 Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages with 55 parties agreed to specify a minimum marriage age by statute law‚ overriding customary, religious, and tribal laws and so forth. In addition there was 123 parties to the 1956 Supplementary Convention on the Abolition of Slavery agreed to adopt a minimum age for marriage. Today, most countries have established the marriageable age as a right is 18, but also with exceptions for the marriage of minors, typically with parental or judicial authorisation. For example in Europe the age of marriage as a right is 18, regardless of sex, and with parental consent and court permission 15 or 16 in nearly all cases. In Australia in the original 1961 Marriage Act, marriageable age was set at 16 for females and 18 for males, but the age was equalised in 1991 by the Sex Discrimination Amendment Act 1991.

Divorce laws vary considerably around the world, but with only two (the Philippines and the Vatican City) that do not allow it all. A number countries, all with a large Roman Catholic population, have introduced divorce relatively recently, including Italy, Portugal, Brazil, Spain, and Argentina in the 1970s and 80s, Paraguay, Colombia, Andorra and Ireland, in the 1990s, and Chile and Malta in this century. Apart from the practical universalisation of divorce laws in advanced economies throughout the world, a significant change in the last fifty years has been in increased prevalence of no-fault divorce. Before the late 1960s, nearly all countries that permitted divorce required proof by one party that the other party had committed an act incompatible to the marriage. This is no longer the case, Poland being a notable exception, requiring "the irretrievable and complete disintegration of matrimonial life". In Australia prior to 1975, grounds for divorce had to be established, the most common being desertion, separation for five years in certain circumstances, adultery and cruelty. In Australia, the Family Law Act of 1975 established the option of no-fault divorce after a period of separation after twelve months.

Another very substantial change in the past century to the definition of marriage has been the question of sexual consent within marriage. Historically exemption from consent was derived from the idea that a by marriage a woman gives irrevocable consent for her husband [15]. Also included in Anglo-American law up to the 20th century was the notion of coverture, where a married woman's legal rights were subsumed by those of her husband. The marital exemption became increasingly viewed as inconsistent with the concepts of human rights and equality, with the feminist movement especially from the 1960s seeking to overturn it, although it was not until December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women which included marital rape as a human rights violation. In Australia it was not until in the 1980s that various state-based jurisdictions overturned the previous common law principle that a person could not be sexually assaulted by their spouse, starting with South Australia in 1976. Some politicians seem to think that the right to refuse sex from a partner is limited. For example, as part of panel discussion on "Religion, Sex and Politics" on March 19, 2009, Tony Abbott said: "I think there does need to be give and take on both sides, and this idea that sex is kind of a woman’s right to absolutely withhold, just as the idea that sex is a man’s right to demand I think they are both they both need to be moderated, so to speak." [16]

A cultural and legal shift to marriage in recent years has been the rise of legal rights and obligations associated with cohabitation, de facto, or common law marriages, which largely correlates with the decline of expected religious authority in the area of marriage. Cohabitation and de facto relationships with a relatively equality of laws initially rose to significance in the Scandinavian countries and eventually through the western Europe and then into the east after the fall of the Communist regimes. Deeply religious areas, such as southern Italy and Greece remain exceptions to the metric which shows an increasing number of births to unmarried (but usually de facto) mothers. In Iceland, Sweden, Norway, and France this now represents the majority of births (as of 2007, 66%, 55%, 54%, and 50% respectively), with Denmark, the United Kingdom, and the Netherlands being close to a majority [17]. As with other countries, as cohabitation has increased, the median age of first marriage has also increased, and the rate of marriage has fallen. In Australia, the Family Law Act of 1975 established the legal principles for a de facto relationship and required that two people, who may be of the same or opposite sex, have a relationship as a couple living together on a genuine domestic basis, whether through living together for two years, having a child from the relationship, or if the relationship is registered under State or Territory law. If a de facto relationship breaks down the same legal systems as a legally married couple and can apply for child support, spousal maintenance, and the division of assets.

Finally, a particularly pertinent issue in Australia has been the introduction of same sex marriage in various jurisdictions. Starting with the Netherlands in 2001, marriage equality was established in Belgium in 2003, then, in chronological order, Spain, Canada, Sweden and Norway, Portugal, Denmark, France, New Zealand, the United Kingdom, Ireland, Luxembourg, and the United States, with Finland will be introducing it next year. Germany, Austria, Switzerland, the Czech Republic, Italy, and Greece have other legal partnerships, whereas a number of eastern European countries have constitutional limits to recognise only opposite-sex marriages. Various forms of civil unions, which differentiate from marriage, have been compared to "Jim Crow" race laws in the United States, encourage discrimination, and do not provide the same degree of legal recognition [18]. As expected there has been no change to the general rate of decline of marriage overall where marriage equality has been introduced nor has there been an increase in same-sex attraction. As an associated aside - and one which opponents of marriage equality often bring up - what evidence exists suggests that the children of same-sex parents have equal, if not better, life outcomes to those of other-sex parents [19].

Marriages of the Future

The trends occurring in contemporary society with regards to marriage are not going away. Equality between partners within marriage and other legal relationships will increase, as will cohabitation, de facto, and common law marriages, expected church authority over marriage will decline, the general rate of marriage will continue to decline, the median age of marriage will increase, and same-sex marriages will be introduced in more jurisdictions without any ill-effect on society as a whole. At their foundation these changes are given the opportunity with the increase in general household wealth over the past century, which removed the necessity of patriarchal family-bound welfare, and the political importance of social liberalism which promoted the need and assurances for individual rights, and feminism which encouraged legal and substantive equality between the sexes. For those who express fears at the prospect of changes to the definition of marriage this historical survey should indicate that they are certainly in for a very rough time. Because the changes that will occur in the next one hundred years are certainly going to be at least as significant, if not more so, that the changes that have occurred in the previous one hundred years.

This is not to suggest that some of the more hyperbolic fears are going to be realised. Unlike the claims of U.S. televangelist Pat Robertson, people in the future will not be able to marry a duck. Least one things this is just another one of those utterly ridiculous claims that come out of the mouth of person who is increasing ability of prophecy which are shown to be quite wrong, this sort of reasoning was repeated by Senator Cory Bernardi just prior to his resignation from the front bench: ""Will that be a future step? In the future will we say, 'These two creatures love each other and maybe they should be able to be joined in a union'." [20] Likewise it will not, as Rev. Fred Nile, suggests, lead to child brides [21]. This claims are either maliciously disingenuous, or the people who make them don't seem to understand that the principle of matrimony is founded on informed consent. Without some serious genetic uplifting, one cannot imagine the legalisation of a journey down the aisle concluded with the quack "I do".

However, the principle of informed consent does leave open the possibility of marriage between relations and group marriages. In modern liberal democracies, consensual adult incest is viewed as a victimless crime where there is any legislation at all, and likewise various household relationships of multiple partners even if the ménage à trois and other forms of polyamory does have some popularity in intellectual counter-cultures. With regard to the former it must be acknowledged in a sense being of the same species, every relationship is incestuous albeit one with a varying coefficient of relationship. Is there possibility of marriage between close relations? The possibility is indeed there based on principle, but for the immediate future the probability is very unlikely. As for polyamorous households, the possibility of marriage equality or other form of legal recognition is limited by the historical disparity in property and power relations. Indeed, various social reformers made significant effort to abolish polygyny in developing countries the interests of equality. Now, with the same interest, there are advocates to introduce it in developed countries.

As with other changes to marriage technology often plays a critical and almost invariably understated role. Recent developments in in vitro gametogenesis (IVG) allow for the possibility of multiplex parenting, that is, the formation of children from one, two, three, or more more genetic parents, including those from the same-sex [22]. In 2015, the United Kingdom legalised multiple parent embryos as a means to prevent children from inheriting genetic diseases. This is of course should end the final, desperate claim, of opponents of marriage equality - that it cannot lead to progeny. Indeed, requiring progeny from marriage leads to all sorts of ridiculous mental gymnastics, such as the state of childless heterosexual couples, the possibility of cross-species fertilisation, and so forth. Whilst there is no current suggestion of multiple parent embryos being a justification for group marriage, or multi-member relations seeking to contribute to a "group produced child", these are not just possibilities, but actually very likely in the near future.

All of this will be of course incredibly challenging for those countries around the world whose development is held back by the imposition of religious laws. Islam historically has allowed polygyny with justifications of economic responsibility this, it is unlikely this provide significant impetus to a change in marriage laws in liberal democracies already deeply suspicious of anti-secular approaches. In this case it would seem that religious advocates would be better placed as followers, not leaders, in any political change Likewise the Shi'a Islamic tradition of temporary marriages or nikah mut'ah, whilst fitting liberal concepts of contract law and pre or post-nuptial agreements, or the increasing popular cultural tradition of renewal of wedding vows.

Despite these significant changes, it would seem that it its changed, diverged, and dynamic sense, marriage and other types of domestic relationship are here to stay, with associated legislation. There are those who feel that perhaps governments should get out of the marriage business altogether, and doubtless that if such an approach was taken up a great deal of the concerns that religious conservatives had with same-sex marriage could have been avoided - secular civil unions could have been applied for all, and marriages could remain a religious institution which would have varied according to creed or denomination. Alas, that opportunity has been largely lost as conservatives held too tightly to the notion that their sacred definitions should be enforced in law for everyone. Nevertheless, over time it is certain that relationship legislation will increasingly show aspects of equality between partners and as variable public contracts.

By way of conclusion, and especially given the date that this address is given, reference must be given to that satirical Australian vernacular "Happy as a bastard on father's day". Of course, it is just a reference to not being very happy at all in a general sense, but the basis was once quite sound. With intimacy and welfare bounded to the patriarchal family unit, being a bastard did indeed once mean a childhood that was far more likely to be subject to much higher levels of indifference and impoverishment. The contemporary removal of many of the legal and cultural barriers to unfair discrimination has indeed reduced such incidence - even to the point that single-parent families have raised children that can reach the heights of U.S. president, as both Barack Obama and Bill Clinton has illustrated and, on an Australian context, as Prime Minister, Kevin Rudd, and Malcolm Turnbull have shown, and with contenders such as Anthony Albanese and Penny Wong waiting in the wings. Well, with examples like that, you can be happy as a bastard on father's day - as long as a society is capable of providing the financial and emotional support to provide the sense of integration. This is increasingly so now, and with the changes we can expect to see, certainly and inevitably much more in a complex future.

Address to the Melbourne Unitarian Church, September 4, 2016.

References

[1] Australian Broadcasting Commission, "Explained: The same-sex marriage plebiscite", 29th August, 2016
http://www.abc.net.au/news/2016-08-29/same-sex-marriage-plebiscite-expla...

[2] Australian Broadcasting Commission, Same-sex marriage plebiscite: Labor indicates it could block vote, Malcolm Turnbull still confident, August 28, 2016
http://www.abc.net.au/news/2016-08-28/labor-plan-to-block-same-sex-plebi...

[3] Sydney Morning Herald, Marriage equality would pass both houses of new Parliament in free vote, August 22, 2016
http://www.smh.com.au/federal-politics/political-news/marriage-equality-...

[4]Clare Blumer, 7 things Vote Compass reveals about Australians' views on same-sex marriage, 22nd June, 2016
http://www.abc.net.au/news/2016-06-22/election-2016-vote-compass-same-se...

[5] Australian Broadcasting Commission, Howard and Costello publicly reject gay marriage, 5th August, 2003
http://www.abc.net.au/pm/content/2003/s917985.htm

[6] Australian Broadcasting Commission, Tony Abbott stands by decision to call for same-sex marriage plebiscite in Alliance Defending Freedom address, 29th January, 2016
http://www.abc.net.au/news/2016-01-29/abbott-stands-by-call-for-same-sex...

[7] Ethnographic Atlas Codebook derived from George P. Murdock's Ethnographic Atlas recording the marital composition of 1231 societies from 1960 to 1980

[8] Miriam Koktvedgaard Zeitzen, Polygamy: A Cross-Cultural Analysis, Bloomsbury Academic, 2008

[9] Examples from: Frederich Engels, The Origins of the Family, Private Property, and The State, FP 1884, Edvard Westermark, The History of Human Marriage, FP 1891, and Richard B. Lee, Richard Daly (eds), The Cambridge Encyclopedia of Hunters and Gatherers, Cambridge University Press, 1999

10] Nawal M. Nour, , "Health Consequences of Child Marriage in Africa", Emerging Infectious Diseases, 12 (11): 1644-1649, 2006

11] UNICEF, The State of the World's Children 2011
http://www.unicef.org/sowc2011/

12] Human Rights Watch, Q & A: Child Marriage and Violations of Girls' Rights, June 14, 2013
https://www.hrw.org/news/2013/06/14/q-child-marriage-and-violations-girl...

13] Sue-Ellen Jacobs, Wesley Thomas, and Sabine Lang (eds.), "Two-spirit people: Native American gender identity, sexuality, and spirituality", University of Illinois Press, 1997

14] John Boswell, Same-Sex Unions in Pre-Modern Europe, Villard Books, 1994

15] Sir Matthew Hale, The History of the Pleas of the Crown, FP 1736

16] Tony Abbott, Religion, Sex and Politics Panel on Q and A, Australian Broadcasting Commission, 19 March, 2009

17] "Changing Patterns of Nonmarital Childbearing in the United States". CDC/National Center for Health Statistics. 13 May 2009.
http://www.cdc.gov/nchs/data/databriefs/db18.htm

18] Australian Marriage Equality. Civil Unions are Not Enough, undated
http://www.australianmarriageequality.org/faqs/12-civil-unions-are-not-e...

19] Collection of research papers available at:
http://journalistsresource.org/studies/society/gender-society/same-sex-m...

20] Simon Cullen, Bernardi resigns after bestiality comment, Australian Broadcasting Commission, 19th September 2012
http://www.abc.net.au/news/2012-09-19/controversy-over-cory-bernardi-bes...

21] Fred Nile, Submission to a NSW Parliament inquiry into same sex marriage laws, 2013

22] César Palacios-González, John Harris, Giuseppe Testa, "Multiplex parenting: IVG and the generations to come",
Journal of Medical Ethics doi:10.1136/medethics-2013-101810
http://jme.bmj.com/content/early/2014/03/07/medethics-2013-101810.full

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Comments

As predicted.
http://www.abc.net.au/news/2016-09-28/world's-first-baby-born-from-3-parent-technique-report-says/7883386