Guest Post – Should legal marriage imply consenting to sex?
A guest post by Andrew Lilico
Dressed up in fine words and aspirations, a traditional European marriage was at root a deal. The parties agreed to have sex with each other and only with each other, and to provide materially for one another and for any children of the union. In practice, by and large, and expressed overly-bluntly, a marriage was society’s acceptable way of women trading sex for material support.
Consent to sex was permanent and ongoing. There could by definition be no concept of “rape†within marriage, because “rape†implies the absence of consent — by definition ruled out. The husband could of course be convicted of beating his wife, but not of raping her. There also had to be laws and principles setting out just what she had and had not consented to. (This was a key practical import of those so-called “sodomy laws†that restricted within-marriage sex acts — she’d consented to have sex but not to do just anything.)
Under English law this arrangement came to an end in 1991, when in the case of R v R what is often referred to as the “marital rape exemption†was abolished. This judgement can be understood as saying that, like selling oneself into slavery, a contract notionally providing permanent and ongoing consent to sexual intercourse will not be recognised in law.
There is of course a strong case for contending that contracts of permanent consent to sexual intercourse may have had their historical role at a time when women needed physical and material protection from some man and needed something to trade to obtain it, but are now (perhaps long) obsolete.
However, we should notice something important here. If we say that the law should not recognise permanent and ongoing consent to sexual intercourse, we are creating a wedge between the legal obligations of marriage and the undoubted moral obligations of Christian marriage. Christian spouses are not entitled to withhold their bodies from one another and are specifically instructed by Paul not to do so unless for some agreed temporary spiritual purpose (e.g. see I Corinthians, 7:1-5). And how could it be otherwise? For if divorce and adultery are both forbidden, then the denial of the provision of sex is the denial of access to sex for the denied partner. A marriage could not be stable under such conditions.
That means that a Christian marriage – a moral and indissoluble contract of permanent and ongoing consent to sexual intercourse – is profoundly different in nature from a legal marriage – a dissoluble contract that does not imply permanent or ongoing consent to sexual intercourse.
Many Christians argue that adultery should be treated more severely in law, that divorce should be harder, that legal re-marriage should be forbidden and for many other ways they urge that legal marriage should be brought in line with Christian marriage. But how many of you really bite this bullet?  At its most basic, a Christian marriage is a contract of permanent and ongoing consent to sexual intercourse, and as such implies that it is impossible, by definition, for a man to rape his wife. If you truly want to bring the law in line with Christian marriage, start there. And if you quail from that – as I expect most sensible readers do – then you are accepting that legal marriage should not, even at the deepest levels, mirror Christian marriage. And once you start to accept that the legal obligations of modern marriage should (not merely do) differ from the moral obligations of Christian marriage, you may find you think of a “state marriage†in a whole new way…
Andrew,
You reference I Cor 7:1-5, but omit the conclusion in verse 6: “This I say by way of concession, not of command.” Paul is providing an opinion on sexual matters from his particular perspective, not setting the law.
The logical inference of your argument is that heterosexual couples where one or both partners are unable to engage in intercourse, or unable to do so at all times without limitation, may not contract Christian marriage.
Given your reference to “a moral and indissoluble contract of permanent and ongoing consent to sexual intercourse” presumably such a union must be terminated if one partner loses the capacity – well, there was an item in this morning’s news regarding an increase in divorce rates amongst pensioners, maybe that covers it.
I’d suggest what this post best demonstrates is that one can argue for any number of exotic positions on marriage from fragments of scripture if one wishes to do so – and it underlines the dangers of doing so.
Rubbish. Christian marriage (or Christian anything) cannot be based on rights- blessedly as Christians none of us are treated as we deserve. Our attitude should be the same as that of Christ Jesus: who, being in very natureGod, did not consider equality with God something to be grasped, but made himself nothing,taking the very nature of a servant. Christian marriage only be built on responsibilities – certainly both husband and a wife have a responsibility to have sex with their spouse, but it’s completely contrary to the Christian life to demand it as if it were payment for a debt. ‘Husbands – love your wives as Christ loved the church’ – that entails not insisting on sex when it’s not forthcoming.
I disagree. Even if we acknowledge that in marriage the wife has committed herself to an ongoing duty to enter into sexual relations with her husband this is not the same thing as giving the husband the right to compel her to have sexual relations whenever he wants. The duty to give is not the same thing as the other’s right to take.
Where does the line between the two lie? Interesting question.
I published Andrew’s piece because I think it helps us conservatives grapple with exploring how much of our presumptions about marriage are actually culturally predicated rather than Biblically based.
I agree with you that this is an important conversation to have. There is a lot that we take for granted without actually examining it on a careful and principled basis.
I don’t believe that sexual relations within marriage are best approached primarily in ‘rights’ and ‘contractual’ categories. Rather, sexual relations are the ongoing gift of the marriage partners to each other that constitutes the consummative heart of the union. For the ‘gift’ character of sexual relations to be maintained, we cannot treat sexual relations as a right that could potentially just be ‘taken’. Rather, each spouse has an ongoing duty to give themselves to the other. My spouse has authority over my body because my body is a gift due to her. However, this authority cannot operate by coercion, but must be something that I freely recognize in not withholding myself from her.
I promise to gift myself to my spouse?
*Digs out copy of Rowan’s “The Body’s Grace”*
I strongly disagree with Andrew’s claims about what Christian marriage implies. I think that his principal error lies within his translation of Christian marriage into contractual categories, when the fundamental dynamics of marriage are not contractual but covenantal. In Christian marriage, spouses both make unilateral promises to each other, promises not contractually conditioned upon the actions of the other party. The law can adumbrate dimensions of the marital union, but it cannot comprehend it.
When Andrew argues that the legal obligations differ and ought to differ from the obligations of Christian marriage, I quite agree with him. However, he seems to presume that we could fairly straightforwardly translate Christian marriage into legal categories in the first place, which is where I disagree with him.
Yes.
I disagree that christian marriage is a contract because I don’t see how one party can demand the specific performance of the other party. As much as husband and wife promise themselves to each other and it would be wrong and sinful in most cases for a wife to withhold sex from her husband, there can be no right to sex enforceable by the husband.
Marriage is to model Christ’s relationship with the church, so the only relational basis can be grace, not exercising ones rights. Christ remains faithful in his promises to the church despite her frequent betrayals of Him.
Very good. The relational aspect necessitates that both husband and wife have rights – and duties. For a husband to rape his wife is for a husband to abandon his duties. For a husband to abandon his duties to his wife is for a husband to weaken his own marriage. Marital rape is rape. Since the wife also has duties, her refusal to have sex with her husband is also an abandonment of duties – but hers is a case of “not doing something she should”, and his is a case of “doing something he should not”. That’s the tricky dynamic, and the balance is grace.
Certainly, there is confusion in the mind of many as to what marriage is (given that Utar believes that marriage is for all humanity, it does not need the prefix Christian-) so it is no surprise that the perception of marriage is coloured by so much cultural extrania.
Let Utar define marriage then: A man and a woman, both virgins, who enter into an exclusive sexual relationship (the consummation marking the beginning of the marriage proper) until one partner dies. The marriage relationship is sustained modelled after the relation between Jesus and His Church marked by tenacious love, sacrificial giving, protection and cultivation.
(In order to avoid tangents, let us call the former the normative model of marriage. Discussing remarriage after divorce, death and the effect of adultery will take the argument to far away from the stem of the issue)
Rape is an act of theft, power, dominance and selfishness. It is therefore antithetical to the Biblical marriage model. The encouragement to give one’s body to one’s marriage partner does not equate to taking one’s marriage partner.
Yes, there are good arguments to strike a marriage contract, seek a public marking and blessing of the union and celebrate the completion of man when a male and female come together. That said they are optional and cultural. To that end, ‘traditional marriage’ is not something to fight for. Traditions are disposable.
UE
‘In practice, by and large, and expressed overly-bluntly, a marriage was society’s acceptable way of women trading sex for material support.’
Well, no. You’ve lost sight of the ultimate purpose, which isn’t sex, but the outcome of sexual intercourse.
In practice, marriage is society’s acceptable way of maximising private welfare arrangements of sexual partners in anticipation of children.
Historically, in the absence of paternity testing technology, you can try to impose paternal responsibility after intercourse has occurred, but a better method would be to establish an up-front exchange of assurances that will pre-empt any dispute over that responsibility.
The reason that the State gets involved in marriage isn’t to ensure that men can readily get sex in exchange for support. It’s that in the absence of marriage fixing paternal responsibility, the child will become more dependent on State support.
The actual transaction is that ‘in exchange for a man’s promised long-term investment in her children, a woman promises her fidelity to the man to assure him of his paternity of the children’.
The marital presumption of paternity is built on the recognition that marriage’s purpose is to facilitate paternal care by assuring a man that a child is biologically his. That presumption is rebutable by biological evidence to the contrary.
Of course, in a same-sex relationship context, partners can offer no such assurance to each other. In a same-sex context, marriage would either have to not establish a presumption of parenthood at all, or to establish an automatic presumption of parenthood on the basis that the non-biological partner consented to the other partner either conceiving or giving birth to a child.
For now, the Same-Sex Marriage Act states: ‘The Marriage (Same Sex Couples) Act does not expressly extend the presumption of parentage. It provides that where a child is born to a woman during her marriage to another woman, the presumption is of no relevance to the question of who the child’s parents are’
If HFEA 2008 is amended to extend the presumption of parentage to women in a same sex marriage, we would then have a fundamental contradiction in law.
You are mixing up distinct things here. Your analysis is an attempt to account for why the state or society had an interest in recognising and enforcing marriage. That is a distinct question from what the man and woman got out of it.
‘The Marriage (Same Sex Couples) Act does not expressly extend the presumption of parentage. It provides that where a child is born to a woman during her marriage to another woman, the presumption is of no relevance to the question of who the child’s parents are’.
Your analyses of things like this are usually spot-on, but here you have missed a trick: the Act says presumption of parentage is not being extended. This is code for “cannot be extended” (in a man/man “marriage”, there is no woman and therefore no child, and in a woman/woman “marriage”, there is no man and therefore no child). “The presumption is of no relevance…”. This means “even though we cannot presume the other woman to be the mother, we are going to declare her to be the other (legal) parent anyway”. So, for “not being extended”, we can read “is being abandoned”. Your feared scenario is that no man or woman will have access to legal recognition of the physical reality of their relationship with their child. That scenario is already with us, David.
Gentlemind, the Explanatory Notes to the Same-Sex Marriage Act lead me to believe otherwise http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0029/en/14029en.pdf:
Part 2 – Presumption on birth of child to married woman
106. Part 2 makes clear that the common law presumption that a child born to a woman during her marriage is also the child of her husband (often referred to as “the presumption of legitimacyâ€) is not extended by clause 11.
Therefore, where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not be presumed to be the parent of that child by virtue of the common law presumption. There may be other ways in which the party to the marriage who does not give birth to the child is treated in law as the parent (for example, if that woman is treated as a parent as a result of the amendment made by paragraph 36 of Schedule 7 to this Bill to section 42 of the Human Fertilisation and Embryology Act 2008), but in all such cases it is not the common law presumption of legitimacy that treats her as the parent of that child.
Yes, I know the presumption of paternity will not apply – but presumption of parentage will. Note there is no mention of how this applies to two men, since that would give the game away haha
The legal definition of marriage is all that matters. If it is not one man and one woman + consummation + permanence, we cannot legally recognise the natural family unit. It’s as simple as that. All else is camouflage. In order to legally pretend that, say, two women can marry, we have to legally pretend that men and women are not physically related to their own children. That’s what makes it an illegitimate law.
I absolutely get your second paragraph, but I’m still not sure how you distinguish *presumption* of parentage.
In the case of lesbian couples, HFEA 2008 made it possible for a woman’s civil partner to be named the co-parent of her children, once they were conceived through a licensed clinic. This will probably be amended to reflect the Same Sex Marriage Act.
Nevertheless, (and in some cases, unconscionably) It is the sperm donor who, by signing the necessary consent forms, relinquishes his right to parental involvement (although, on reaching 18, the donor-conceived child has the right to know the donor’s identity).
In the case of gay couples, the birth mother will still be the legal mother of the child and her husband is the presumed legal father. Even unmarried mothers have a legal duty to register the birth of the child.
However, since 2010, with the consent of the surrogate and her husband/partner, married, same-sex and unmarried couples have been able to apply to court for a Parental Order. Once the Parental Order is granted, the birth mother and her partner relinquish all parental rights. Again, I might have scruples about this, but the decision to surrender parental rights requires the legal mother’s consent.
My gravest concern is with the jurisdictions which routinely re-purpose the marital presumption to usurp the unsurrendered paternal rights of the known and committed biological father without his consent. Such theft of the father’s rights is unrebuttable by genetic evidence because the courts in those countries apply the presumption via marriage to enforce a complete legal fiction that pretends that the biological father has no rights to his child.
Now, some might say: ‘wouldn’t this be the case for a heterosexual married couple?’. My response is that for heterosexuals, in the absence of assisted reproduction through a licensed clinic, an adoption or parental order, the biological father is still the legal father. His rights cannot be ignored: he has the right to rebut the presumed father’s claims in court.
In contrast, to uphold the parental claims of the lesbian partner of a birth mother, would require a presumption that could not be overriden by biological evidence. It would, as you say, be a legally supported rejection of hard evidence.
As far as the law stands today, that does not apear to be the case.
Perhaps, you can give me a scenario in which paternal rights could be taken away automatically via same-sex marriage from a known biological father (not an unknown sperm donor).
But surely there is a contractual (or conditional covenantal) commitment to faithfulness? In Matt 19, Jesus allows the contractual relationship of marriage to be broken – as does 1 Cor 7. So the biblical ‘right’ is that both man and woman should expect that any sex will remain in the confines of marriage, and not at all outside; even though marriage may be unconditionally covenantal surely it is therefore contractual?
I find these a bizarre and disappointing set of comments. There are many objections one could imagine raising to what I say. One could for example claim that the promises of marriage are not permanent (I’d disagree). One could claim that they were permanent but could be withdrawn at any moment (I’d disagree). One could claim that they were permanent but not ongoing (I’d disagree again).
But most of you don’t claim any of these things. Instead you claim that in a marriage the husband and wife do not promise to have sex with one another! I find that so extraordinary and so obviously wrong that I lack the stomach to argue with you in detail. Have we really reached the point where folk, in all seriousness, doubt that in marrying we promise to have sex?
In marriage husband and wife do promise to have sex with each other. However, this takes the character of an ongoing commitment to give themselves to each other. However, an ongoing promise to give is not the same as an ongoing entitlement to take. If a wife continually refuses to have sexual relations with her husband, her husband may have grounds for divorce as she has broken her covenant promise, but he does not have the right to compel her to have sexual relations against her will (which is a different form of violation of the marriage covenant).
That’s the first comment that is almost relevant to my point, though only just and only in a particular way. I never claimed that the husband had any moral right to have sexual relations with her against her will. I said that she had promised to have sex with him, so (morally speaking) the issue of her consenting to have sex with him is settled – she has so agreed by marrying him (as he has agreed with her).
Now the way in which what you say is relevant is this. You are claiming that the promises we make in marriage are not permanent and ongoing. Instead, you say, the marriage exists as long as the promises are honoured, and if the promises cease to be honoured that is a ground for dissolving the marriage (for divorce). Now that certainly is a concept of marriage. It just isn’t a Christian concept of marriage. For a Christian holds that marriage is indissoluble – what God has made, man may not separate. The promises of marriage cannot ever be withheld or reversed.
The Scriptures clearly mandate divorce under certain conditions and not merely as the Mosaic concession. The promises that we make in marriage are permanent and ongoing. However, marital covenants can be broken and they can be dissolved.
God forbids us to break what he has joined together. It is possible to break the promises of marriage, just not permitted—that is the sense in which marriage is ‘indissoluble’. Where those promises have been broken, the wronged party has the right to divorce.
This may not be a Roman Catholic view, but it most definitely is a Christian view (albeit not the only one), with a fairly long and established pedigree.
I’m not convinced of that. But I’m an Anglican (and thus even more indissolublist than the Romans). In my view the cases the Bible identifies where re-marriage is permitted should be understood as instances of permitted polygamy, not of marriages ending.
But you have correctly alighted upon a central issue. If we believe marriage promises are not ontologically permanent-to-death but instead merely commanded not to be withdrawn until death, then of course consent (like any other promise) could be withdrawn, ending the marriage.
Perhaps some further clarifications of my position here might help:
1. Marriage is not just contractual, but is covenantal/ontological. The two are ‘one flesh’. Being one flesh is a persisting fact that results from the original formation of the union and isn’t merely contingent upon the continued consent of the marriage partners.
2. Consequently, the withdrawal of consent doesn’t mean the union and its obligations cease to exist. These obligations are permanent until death.
3. What is missing here is an understanding of divorce—like excommunication—as a sentence of ‘covenantal death’ enacted on the basis of covenant breaking, which frees the wronged party from the law of their spouse.
Are you claiming that, if a wife disregards the wedding vow and refuses to have sex with her husband, Paul of Tarsus gave the husband license to go ahead and rape her?
Or, as his letter to Corinth is mutual, he also gave a wife license to rape her husband?
I’m saying that (morally speaking, as opposed to legally speaking) the issue of rape never arises since consent is always present. I’m not saying that a husband is entitled to rape his wife. I am saying that, by definition, it is impossible for a husband to *rape* his wife (even if he wanted to) – at least in respect of those forms of sex she pre-agrees to in marrying him.
Rape is commonly defined as compelled sex. If a husband uses force, even if his wife “consented” in her wedding vows, it could still be rape in this framework. Alternatively, it could be classed as aggravated sexual assault, making this a distinction without a difference.
But it’s not “compelled” if she consented, is it? That’s the central question – did she consent by marrying him?
The question isn’t whether she “consented” with scare-quotes implying she didn’t actually consent. It’s whether she consented without any scare quotes.
In many codes, English law among them, there’s only so much force you can consent to. To give the classic example, you can’t consent to slavery. It’s doubtful that anyone could consent to a violent rape even if they wanted to.
Then there’s the issue of informed consent. For consent to be good, a person must be reasonably expected to understand what they’re signing up to. It’s unreasonable to expect anyone to understand the exchange of marriage vows to be giving a green light to being raped years down the line.
This just goes to show the pitfalls of using Corinthians as a legal how-to. It’s different in kind. The underlying point of Paul’s theology is that the Mosaic law has been replaced by the Spirit of God.
Well precisely. And slavery was the example I quoted. And the law has now (at least since 1991, perhaps earlier) decided that legal contracts of permanent and ongoing consent to sex are not permissible (or perhaps not possible).
But it does not follow that a Christian marriage is not fundamentally a moral contract including permanent and ongoing consent to sex.
It does if Corinthians creates no “undoubted moral obligations” to consent to sex, or if a Christian marriage isn’t bound by Paul’s opinions. Personally, I believe that both are true.
I think perhaps your position might reasonably be characterised as being that, when we marry, we don’t provide ongoing consent to sex. Instead we provide ongoing consent to consent to sex. Does that seem right?
I wouldn’t express it in terms of ‘consent’ (which, biblically speaking, is a category that is introduced only in the context of the denial of sexual relations). ‘Consent’ frames things in a manner that characterizes us primarily as the non-resistant objects of others’ actions. I would suggest that such a framing contributes in part to the idea that marital rape cannot be a thing.
Husbands and wives do not give open-ended ‘consent’ to each other’s sexual claims, but rather assume an ongoing obligation actively to render their bodies to the other. This obligation shouldn’t be understood as a blank cheque written out to their spouse, but an ongoing responsibility that they have assumed to give themselves to their spouse. Provided that, within the reasonable limits of their powers, both spouses offer sexual relations to the other on a relatively regular basis and do not deprive each other for an extended period of time without consent, they are completely fulfilling their vows. There is nothing about providing sex on demand.
This looks to me like a variant of what I said was the “best response” above. Saying I promise to render my body is not in this context to say that I do not consent. What it says is that I do not /merely/ consent – I do more than that. I promise to participate as well as to permit. But that isn’t by itself an argument against anything I said.
The thing that does constitute an objection (correct or not) is the contention that promising to provide sex is not the same as promising to provide sex on any and every occasion.
I would distinguish between ‘consent’ and the promise to render one’s body to one’s spouse. I do not believe that consent to every maritally permitted sexual act is implicit in the latter.
Let’s be clear. What you are claiming is that one of the fundamental divergences of Christian marriage from legal marriage is that Christian marriage confers on a husband the right to his wife’s permanent and ongoing consent to sexual intercourse.
You say permanent and ongoing consent implies that he cannot, by definition, rape his wife, because that would involve a withdrawal of consent promised in marriage.
So, here’s a contractual analogy. I sign a UK-wide exclusivity agreement with a national brand. I will only carry what they produce. In return, I am promised their support.
While it doses mean that I can’t entertain a different provider, does my permanent and ongoing consent to that exclusivity agreement imply that I, by definition, cannot refuse to carry excessive stock levels? Even if it leaves me bursting at the seams?
Of course not. Yet, you suggest that for the Christian marital exclusivity agreement, permanent and ongoing consent to take a man (rather than stock) equates to permission to leave a wife bursting at the seams.
Ridiculous!
I’m heartened by the absence of legalism on display in the comments. As has been pointed out, Paul of Tarsus draws an ideal, not a license to commit rape. It’s also (radically for its time) mutual, so the wife has as much “right” to the husband as the husband has to the wife. That mutuality makes a nonsense of any attempt to read it as permission for one partner to commit assault and battery on another. The letter has to be read in light of the spirit. These comments have done so.
Let me help you out. Here’s what strikes me as the best response to make…
“Indeed, a Christian marriage involves permanent and ongoing consent to sex, but the author has already stated that that doesn’t mean consenting to “just anything”. For example, just as a (permanent and ongoing) consent to have sex may not encompass agreeing to engage in various uncomfortable or violent sex acts it also may not encompass a wife consenting to have sex with her husband when he staggers home, eight pints in, reeking of perfume and covered in the lipstick of the girl he was necking with in the nightclub.
“Now although this may seem obvious, it could be tricking in practice for the law to identify, of any particular contended case of sex to which the wife expressed an objection, whether it fell into the category of things she’d consented to in advance or not. That may leave the law in practice in the position of deciding between two general policies. It could either assume that the wife had always consented in advance (even to the drunken sex case) or it could assume she had never consented in advance and could always refuse consent on a particular occasion. Now which of these two was the best general approach for the law to make might depend upon all kinds of pragmatic factors, and it is entirely plausible that the correct pragmatic legal position at some point in the past was that consent was always there in advance, and at some later point that consent was never there.
“The upshot of all this is that your original contention was mistaken. For you asserted that in R v R 1991 there was some fundamental change in the understanding of marriage. But there was not. Instead of legal marriage changing in any fundamental way it changed only in a pragmatic way – we shifted from a pragmatic assumption of always-consenting-in-advance to one of never-consenting-in-advance without changing our understanding of the underlying fundamental position at all.”
Attract anyone?
R v. R called the marital rape exception a “common law fiction,” (i.e., it had never been the law to begin with) so if this area of the law is unchristian, it’s nothing new.
Personally, I think the strongest objection is that Paul’s words shouldn’t be read in a legalistic fashion.
I feel some of you are missing some aspects of this discussion that seem obvious but perhaps I should state them explicitly. Whether we say of some violence by a husband against his wife is (morally speaking) a rape or not is of profound significance that goes much wider that simply the nature of his punishment. Consider this. It is by no means uncommon for married couples to stop having sex after a few years of marriage under conditions in which one party wants to carry on with sex but the other does not. Probably the more common case is that the wife decides she no longer wants to have sex with her husband. If she does that and is a Christian, do we believe she has violated the terms of her marriage contract – is she withholding what she has pre-agreed to provide? If we say yes, we are saying that she is not morally entitled to refuse to have sex with her husband, having married him (or at least not without divorcing him, if one takes the view that marriage is dissoluble).
You could make an argument that she’s morally wrong, but it’s a different argument to say that “If we say that the law should not recognise permanent and ongoing consent to sexual intercourse, we are creating a wedge between the legal obligations of marriage and the undoubted moral obligations of Christian marriage.
We’re only “creating a wedge” if a Christian is obliged to enact Paul’s words in Corinthians in a legal code. I see no evidence for this, even among those Christians who subscribe to biblical authority (those who don’t can, of course, simply say that, if Paul is arguing that, he’s wrong).
I really enjoyed the article, as a kind of Devil’s Advocate piece of nudging and probing. Marriage is the only morally valid environment for sexual activity – sex outside marriage is bad, and sex inside marriage is good. It doesn’t then follow that it is bad to not have sex inside marriage.
Andrew, this really is weak stuff. Christian marriage is decidedly not defined sola scriptura and even if it were, the pick-a-quote method of exegesis would not provide the means to understand it, especially when you specifically ignore that even Paul specifies that his views did not constitute a command.
Your vision of the history of marriage is also inventive. Until comparatively recently, marriage was the preserve of the propertied classes and existed to regulate the passing on of property. Sex was incidental except in that it was required for procreation and so the requisite ongoing transmission, whilst those without property would betroth but not wed.
Hence the tradition of “common law marriage,” which lingers in some jurisdictions (Scotland only abolished it entirely in 2006).
If there’s a wedge been driven between Christian marriage & the law, given the mutuality expressed by Paul, coverture is a much better candidate than the abolition of the common law fiction on marital rape.
I’m very much in agreement with you, except to note that Christians can still have discussions amongst each other and that it still matters at least as much what we consider the ideal we should seek to reflect in, for example, our votes and campaigning as what anyone else considers ideal. Christians have votes too, don’t they?
Furthermore, one could imagine introducing an additional category of legal contract – let’s call it “covenant partnership” – that Christians (and perhaps a few others) could enter into with each other that reflected Christian marriage ideals.
Yes, Christians do have votes and one would expect them to exercise their votes in accordance with their beliefs. But as you know, Christians do not form a voting bloc on most issues. There are as many opinions amongst Christians regarding same sex marriage as there are in the wider community, ranging from complete support to total opposition. So to speak as though Christians are, by definition, against gay marriage and will inevitably vote against it is a misrepresentation of the real situation.
Say rather that Christians of your particular ilk will probably vote against marriage and then you’ll be closer to the truth. Say then that the voting bloc you represent is clearly in the minority and that in any democracy the minority cannot impose its views on the majority and we’ll have arrived at the reality of the situation.
Just because you’ll inevitably lose the vote doesn’t mean your voice shouldn’t be heard of course. But it does mean that once the majority has spoken, the minority must acquiesce to its wishes. You’re perfectly at liberty to keep on voicing your disagreement, but you can’t ignore the new legal landscape and act as though things are still the way they used to be.
As for your suggestion of legally recognised “covenant partnerships”, I don’t see any need for them. Marriage is the vehicle for legal recognition of partnership between two consenting adults. No other form of relationship contract is necessary, not even civil partnerships in my opinion. The sooner we do away with them and get rid of this idea of relationship apartheid (separate but equal, as if!), the better off we’ll all be. If Christians want to think of their marriages as in some way superior to everyone else’s, let them do so. Let them boast of the wonders of holy matrimony and be content with that. There is no reason why the state should aid and abet their superiority complex by according them separate legal status. They may think of themselves as the chosen ones, but to the rest of us they’re as ordinary as anyone else and certainly don’t deserve special rights and privileges.
“But it does mean that once the majority has spoken, the minority must acquiesce to its wishes.”
Even if the majority wish to deny the minority their rights? Is majority rule always the right solution?
Legislating to remove rights is a delicate business. It can only be justified in cases of compelling public interest as agreed by a broad consensus of opinion.
For example, most of us would agree that parents have the right to raise their children as they see fit. But most of us would also agree that abusive or violent parents should have that right suspended as it is not in the public interest to allow anyone the right to mistreat other people, be they your children or not.
Interests must always be weighed against each other and this means situations will arise where, in order to ensure fair and equal treatment for all, the privileges and what we call in French “les acquis” (I don’t know how to translate the word, but the sense is of an acquired privilege that is thought of as a right by those who enjoy it) of some must be surrendered or shared. An example of this might be the voting rights of hereditary peers in your House of Lords. Peers lost their “right” (or more correctly their inherited privilege) to review and reject legislation in favour of a more democratically based (but admittedly still not perfect) system. A minority had a “right” removed by the majority and I think there are few who would argue that it was not justified by a compelling public interest to eradicate unfair hereditary privilege.
It is compelling public interest that must decide cases of competing “rights”. This may entail legislation that affects minorities and/or the majority.
Who decides if there is a compelling public interest?
A broad consensus of public opinion.
In the British system this is reflected by parliamentary vote. In the case of the equal marriage legislation, broad consensus can be inferred from the massive majorities, some of the largest since the last war, attained in both Houses.
The minority against equal marriage was certainly vocal, but in a parliamentary democracy he who shouts loudest doesn’t necessarily carry the day. Even when there’s broad consensus you can still have disaffected minorities who are so angry at losing their privileges they just won’t stop squealing. One has sympathy for them because it’s never pleasant to be deprived of something you’re used to, or in this case to witness the hoi polloi accede to the same rights and privileges you believe are yours alone by the will of God. France was full of the same cri de cÅ“ur during the demonstrations we had last year against equal marriage. And in 1789 too, when they rounded up the aristocrats and with a bit of judicious pruning deprived them of their divine right to rule. Luckily since then we’ve progressed beyond having to eliminate the individual in order to eliminate his privilege. But as a result we now have to bear the wailing and gnashing of teeth of the dispossessed. Still, much rather that than the Terreur, no?
I’m struggling to see your philosophical objection to the Terreur. How do you decide that’s not an acceptable way for the majority to treat the minority?
The Terreur was vegeance run amok. There was no compelling public interest in slaughtering our former rulers when depriving them of their privileges was all that was needed to rectify the social and economic inequalities they created.
You can argue that killing the aristocracy and in particular the royal family was the best way of preventing a counter-Revolution, which was in the public interest. But you only have to look at examples of countries where this did not happen to see the fallacy in that. In China, for example, the former emperor was successfully rehabilitated and lived out the rest of his life as a model citizen. In providing an example of how even the most privileged can adapt and thrive when their privileges are removed, he served the public interest far better than he would have had he been executed to satisfy a desire for revenge.
The public interest is best served when there is room for all members of the public to coexist without unfair privilege. If you eradicate people as well as privilege, you’re eradicating part of the public and are therefore acting against public interest.
Of course on an individual level it’s far more complicated than that and I make no arguments either for or against the death penalty here, but I do argue against genocide or the elimination of a social class or category. These are clearly acts that harm the public interest.
The thing is that marriage also automates the conferring of legal parenthood. This important recognition removes hindrances from families who might wish to migrate. The onus is not on them to prove that their kids belong to them. It has nothing to do with religion, it is a fundamental privilege of the institution of marriage.
So, for a heterosexual married couple, the birth mother is the legal mother. Her husband at the time of birth is the presumed legal father.
However, the presumption of paternity can be rebutted by clear and convincing genetic evidence to the contrary (i.e. from the biological father).
So, let’s go for marriage equivalence for all sexual orientations.
For cases in which a known and committed biological father is involved:
1. On what basis should the female spouse of the birth mother be considered the presumed legal co-parent?
2. On what basis should the male spouse of a biological father be considered the presumed legal co-parent?
3. On what basis should the known and involved biological father lose his parental access should the couple decide to move with his child to another country?
You can probably see why marriage is aligned with biological parenthood, which happens to be heterosexual.
Nevertheless, your ‘solution’ might be to separate marriage from legal parenthood completely. This puts the onus is on every man to undergo genetic testing to prove that his wife’s children are actually his.
You might try a ‘three-parent’ family as in British Columbia, but (apart from proving the slippery slope) if the same-sex lesbian couple decide to emigrate with the biological father’s child, what happens to his ‘equal’ parental rights?
In addition, a legal innovation that ends the presumption of paternity would change the institution of marriage for all married couples. Suddenly, fathers will need to provide genetic evidence of paternity for all their kids, rather than only when paternity is contested. This is exactly what proponents of gay marriage said would not happen. They claimed that full same-sex marriage rights will not affect straight marriage rights in the slightest.
Clearly, they were wrong.
A known and committed biological parent should, it seems to me, be fully involved with his or her child. In the case where the other parent has a same sex spouse there should be no presumption of parentage on the part of that spouse because it’s clearly not possible for that spouse to be the biological parent.
We probably agree on this. Where we probably disagree is on the effect it has on the status of same sex marriages. Marriage in and of itself has never conferred a presumption of paternity on a man. What confers that presumption is the combination of marriage AND gender. A woman married to a woman obviously cannot be the biological parent of her wife’s child, therefore their marriage confers no presumption of parenthood on her (the not pregnant partner). In the case of a man married to a woman, his gender confers the presumption of fatherhood when his wife becomes pregnant. That presumption does not exist if the couple are not married because there is no legal framework to recognize the sexual relationship between them. But if they are married, they’re assumed to be having sex and that sex is assumed to be capable of producing a child, so any child the wife has is assumed to be the husband’s unless otherwise stated.
So there’s no change in the rights of a husband married to a wife and no inequality in the status of same and different sex marriages. Marriage makes the presumption of fatherhood possible where it is possible and where it is not nothing is presumed.
In the case of a woman who has a child while married to another woman, the father will only be recognised as such if the mother identifies him. But this is also true when the mother is unmarried, so same sex marriage changes nothing here. Once recognised, the father then has full parental rights until such time as he cedes them to someone else (such as the mother’s wife) or has them taken away by the relevant authorities for whatever reason. So if the child’s mother and her wife want to emigrate with the child, the father can apply to the courts to stop them. I don’t know how such cases are decided because I have little interest in family law and have never studied it. But one assumes that the courts decide based on the best interests of the child.
As to the rights of a same sex spouse over the children of his or her partner, again this is not my area of expertise. I imagine that parental rights can be ceded by the biological father or be taken from him and conferred on the same sex spouse of the mother, in which case it would be similar to an adoption. But I’m not aware that the same sex spouse will ever be presumed to be the child’s parent, except perhaps in the case of anonymous gamete donation when the identity of the father is unknown. But even in that case, biological parentage is not being presumed. What’s being presumed is who will filfill a parental role in the child’s life. So it’s more like an automatic adoption than a recognition of biological parenthood. And it can only take place in the absence of a presumed or recognised father.
‘A known and committed biological parent should, it seems to me, be fully involved with his or her child. In the case where the other parent has a same sex spouse there should be no presumption of parentage on the part of that spouse because it’s clearly not possible for that spouse to be the biological parent…What confers that presumption is the combination of marriage AND gender.’
I agree whole-heartedly with that. Even the Same Sex Marriage Act is on the same page: ‘The Marriage (Same Sex Couples) Act does not expressly extend the presumption of parentage. It provides that where a child is born to a woman during her marriage to another woman, the presumption is of no relevance to the question of who the child’s parents are’
However, let’s say we air-brush the rights of the known and committed biological father out of the picture: As the International Lesbian and Gay Association put it: ‘The principle of ‘presumption of paternity’ is not extended to the second lesbian mother in any of the EU Member States even when the couple is married or registered. This means that all children of same-sex partners have to be subsequently adopted (where possible) by the non-biological parent through a second parent adoption in order for them to establish a legal link with both parent.
As indicated above, second-parent adoptions are only possible in nine EU Member States, as well as Iceland and Norway. This procedure may take up to six months to complete and leaves the child with only one legal parent for the duration of that period.
Children of same-sex couples coming from the other 18 Member States cannot establish a legal link to one of their parents and as a result their rights to freedom of movement in the EU are significantly hampered.’
This is the International Lesbian and Gay Association’s remedy (http://www.coe.int/t/dghl/standardsetting/family/ILGA-Europe%20Response%20to%20Professor%20Nigel%20Lowe's%20Report%20FINAL%20VERSION.pdf ):
Part II Parental Affiliation
Article 10 The establishment of parental affiliation
The law shall always provide for the possibility to establish parental affiliation by presumption, recognition or judicial decision.
Article 11 Birth mother
The birth mother shall be considered as a parent regardless of genetic connection and marital or registered partnership status.
Article 12 Spouses and registered partners
A person who is the spouse or registered partner of a child’s parent at the time of that child’s birth shall also be considered as a parent, regardless of genetic connection.
Article 13 Child born after end of marriage/registered partnership
1. A child born within a time limit, determined according to the law by reference to the normal period of gestation, after the end of the marriage or registered partnership of his or her parent shall be presumed to be the child of the parent’s spouse or registered partner.
2. States are free not to apply this presumption if a child was born after the dissolution of the marriage or registered partnership by annulment or divorce.
My reference to this undermining of the primacy of biological parenthood could be dismissed as scare-mongering were it not for legislation through same sex marriage to this effect in the USA, Canada, Australia, the Netherlands and elsewhere.
While you say: ‘What confers that presumption is the combination of marriage AND gender.’, the gender-neutral view of marriage is will end up eliminating the principle of gender in that presumption. It will demolish the rights of known and committed fathers.
After what you’ve said, can that ever be right?
Your question is nonsensical because there’s nothing in the legislation that justifies it. Nowhere is the presumption of paternity in opposite sex marriage attacked or weakened. On the contrary it is specifically confirmed.
You might as well say that equal marriage will lead to opposite sex marriage being abolished altogether. It’s scaremongering and clearly seen by the wider public as such, I think.
I’m glad that you can confirm that unlike other sections of legislation that have been repealed for being homophobic, it is far beyond the realm of possibility for the recently announced EU LGBTI Roadmap (Lunacek) for to have any effect on the presumption of paternity for UK citizens. Particularly as that roadmap relates to family re-unification.
I’m glad that unlike the Netherlands, Spain, Canada, USA and Australia, the UK will be the one country where same-sex marriage do not argue for a gender-neutral presumption of parenthood.
What you can’t assure me is that scare-mongering conservatives have written and enacted legislation in those countries to remove gender from the marital presumption of parenthood.
And that’s probably because defending what you’re on record as opposing would be indefensible.
I can’t guarantee you anything because I’m neither a policy maker nor a legislator. I can tell you that equal marriage legislation in France and the UK confirms the presumption of paternity in opposite sex marriage. Any future changes will have to be debated in parliament in the usual manner.
As things stand I can’t see any future goverment including this in their legislative program. It’s an issue they’d all rather avoid considering the emotions and controversy it stirs up. But then I don’t have a crystal ball…
Anything you say now about what might happen in the future is pure speculation, the clear aim of which is to influence people against equal marriage by inventing spurious consequences. If that’s a tactic you think will win hearts and minds, by all means continue. Personally I think you just discredit yourself and play right into the hands of those who support equal marriage, but far be it from me to stop you from doing that.
Far be it from me to distance you from the clearly enunciated agenda of LGBT activists worldwide.
If you can maintain that contradiction where marriage only regulates parenthood for heterosexuals, I think the term for that is cognitive dissonance. Not incurable, but not worth the effort.
Nature regulates parenthood for heterosexuals. Marriage is just the framework of an agreement they strike to live as a couple in the eyes of society. Within that marriage if they decide to have children then the husband is presumed to be the biological father because marriage is presumed to be a sexual union and when a man has sex with a woman pregnancy can result. This is not the case when a same sex couple has sex therefore no presumption of parenthood can be made for the spouse who is not bearing the child.
It’s a simple proposition clearly stated in current marriage law. There are no plans to change it that I’m aware of. Whatever LGBT organisations may or may not lobby for, here in France at least,
the government bas already made it clear that there will be no change in the law regarding parental rights and medically assisted procreation, which is not available to same sex couples here. Surrogacy is illegal here for all couples, gay and straight. These are policies I support as I do not believe that any couple, gay or straight, has the right to a child unless they can produce it themselves. I would go one step further and ban gamete donation to straight couples also. If you want a child, make it yourself. Don’t treat other people’s bodies as commodities that can be purchased, traded or even donated for your benefit.
This may put me at odds with some LGBT organisations, but I can live with that with no cognitive dissonance whatsoever. The only “rights” we have when it comes to reproduction are those determined by our bodies. My own relationship will never produce children because two men can’t do that, which is, as far as I can see, the end of the story. That doesn’t make my marriage inferior to any other marriage. It doesn’t mean I have fewer rights. It just means my partner and I can’t have children. We’re no worse off than any infertile straight couple. Indeed we’re better off because there’s no expectation of children and therefore no disappointment to deal with. Marriage has nothing to do with children when you can’t have them. And when you can, marriage doesn’t take on some special meaning as a result. It’s still just a contract defining a shared life. It’s just that different couples will share their lives differently and if children result from the sex some couples have, it’s only right that the law should regulate who is responsible for them.
Andrew argues the case rigorously, but I find two flaws, one logical and one theological.
1) Logical: it is one thing to say that someone is obliged to something in general, and another thing to say that they are obliged to it on a particular occasion. As a priest, I have a general obligation to preach and administer the sacraments to my congregation. But having that obligation does not mean I have to those things anytime, nor do I have to them at the exact moment that one of my parishioners asks me to do so. I have an absolute obligation to do so, but I also have some say and discretion over the timing and manner of my fulfillment of that obligation. Often, this discretion is precisely in order to ensure that the obligation is fulfilled properly. If someone marches in and demands that I baptise them, I would be remiss if I did not first ensure that they were ready. Not because I don’t have an obligation to baptise them, which I do, but precisely because of that obligation. My obligation does not create a corresponding right on the part of my congregation to demand that my obligation be fulfilled in a time and manner exclusively of their choosing. Nor if I fail to fulfill my obligation does that give them the right to administer the sacraments to themselves.
Andrew is right to say that the Christian understanding marriage involves a lifelong commitment and consent to sex with a particular person. Consent to sex has been given in general terms just as I have consented to preach and administer the sacraments to my congregation in general terms. But that doesn’t remove the need for consent and willingness in particular instances. Again, not in spite of the nature of sex, but precisely because of its nature. This brings us to point 2.
2) Theological: the nature of marriage and sex. Whilst marriage in the Christian tradition may bear affinities with the notion of contract, it is emphatically not a contract in two key senses. First, the two people do not set the terms themselves, God does. Second, failure on the part of one party does not necessarily give the other party the right to terminate the arrangement. Divorce, biblically understood, is a recognition that one party has *already* destroyed the marriage (eg through adultery) and that therefore the other party is free to remarry, rather than a decision to terminate the marriage. Marriage is not a contract but a covenant – a fusing together of two people into one flesh, by God. Sex within this covenant is an act of self-giving (that is precisely the point of Paul’s words in 1 Corinthians: the husband should ‘give’ himself to his wife and vice versa) and not something which can be taken where it is given. Therefore marital rape can take place, not because marriage is not a commitment to sex (it is) but because sex is not the perfunctory slaking of erotic desire but the willing gift of two people to one another in physical union.
The “Logical” point is a variant of what I called the “best response” above. And there is something in it, but perhaps less than Sean implies. Sean commits to providing the sacraments. He may not commit to provide them under any-and-every circumstance without due consideration or preparation. He may not commit to providing them a 3 o’clock in the morning to someone drunk he’s already provided said sacraments to three times the previous day.
The thing is that if we go down this route we are still left with a general presumption of consent. If Sean refuses to provide the sacraments there is at least some burden upon him to show why it wasn’t reasonable to request them of him. Similarly, the husband could claim he had good reason to assume consent and the woman might have to show why it was reasonable for her to deny him sex on this particular occasion.
All of that might be feasible, but it isn’t (as I understand it – and perhaps others may correct me) how the law stands now.
Loving this thread. That is all. Carry on.
Thanks. That helpfully illuminates at least part of the difference between us. I am speaking morally, you are speaking legally.
There is a simple confusion here. Where Paul lays duties on Christian spouses, he does not lay corresponding enforceable rights. A spouse may be told to submit, but never is anyone told to expect, force, or demand submission. Therefore the submission must be, and continue to be, consensual.
In 1 Corinthians 7, the Christian is told not to divorce their unbelieiving spouse. They have a duty to adhere. However, they are also told to permit the other to refuse and leave. Christian marital strictures never imply any assertion of rights, force or coercion.
Ephesians demands husbands “love your wives, just as Christ loved the church and gave himself up for her”. The “give up for her” is entirely incompatible with the asserting of right to sex – but entirely compatible with offering one’s own body with consent.
When Jesus demands that a man with two cloaks give one to the man with none – we cannot interpret that as a right for the cloakless to demand, let alone violently take, his due from the two cloaked. Loving submission must always imply a choice to die to self and live for the other.
This is exactly right. Furthermore, our peculiarly modern obsession with “consent” merely betrays the poverty of our attitude to sexual morality; having decided that anything goes, sexually, we have to insist upon consent as the only determinant between legitimate and illegitimate sexual activity. Surely in Christian marriage we have to dispute this whole ordering of things; the problem with Andrew Lilico’s argument here is that it is predicated upon the modern, secular fascination with “consent”. There are in fact entirely different criteria in Christian thought for determining the propriety of sexual acts; were it not so, a husband and wife would be expected to give explicit verbal consent to every sexual act, something most of us know not to be the case.
John, the focus on consent doesn’t show any poverty in our attitude to ethics: it’s usually in a legal context. Law and ethics are different things.
Are you claiming that our attitude to sexual ethics used to be better? If so, when? D’you have examples?
It’s worth noting that the pronouncement by Sir Matthew Hale which appears in his History of the Pleas of the Crown (1736), vol. 1, ch. 58, p. 629:
“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”
What we need to understand is why he could have made such a declaration of the common law at that time. A key legal doctrine at the time was coverture: the subsuming of a wife’s legal rights and obligation into those of her husband. In law, marital consent made the husband and wife one indivisible legal person. A man was legally responsible for torts committed by his wife. Until relatively recently, spousal testimonial privilege was upheld by law. A woman could not be compelled to testify against her husband.
It’s also important to remember that matrimonial causes were the part of the remit of Ecclesiastical courts until Hardwicke’s 1857 Marriage Act gave jurisdiction to secular courts.
Perhaps, this is what Andrew Lilico is hinting at.
According to the Ecclesiastical Courts, marriage imposed legal responsibilities, including consortium: the rights of marital companionship, including domestic duties and sexual intercourse. This doctrine that, on marriage, a wife gave her body to her husband was accepted in matrimonial cases decided in the Ecclesiastical Courts. In some cases, that right of consortium was qualified. For instance, in Popkin v Popkin, (1794) 1 Hag.Ecc. 765n., Lord Stowell, in a suit by a wife for divorce a mensa et thoro (judicial separation without the right to re-marry,at p. 767: “The husband has a right to the person of his wife,” though he added the important qualification, “but not if her health is endangered.” Hmm..
Nevertheless, the chief point that I think Andrew is trying to make ‘tongue-in-cheek’ is that this is the flip-side of turning a moral pronouncement into a legal demand. Given that laws, once made, are often interpreted inflexibly, do we really want legal marriage to impose the doctrines of Christian marriage without qualification?
In some respects, he’s right. It’s lazy for Christians to think that we can continue to expect that the laws of this country will make the case for Christianising society. That our laws will reassure us that we’re doing a good job of ‘persuading’ society about the moral rectitude of Christian doctrine. It results in little more than the pharisaical hypocrisy that has typified middle class morality.
It’s also important to distinguish what can be accomplished by grace transforming us, once we are persuaded of a moral truth, what can be accomplished by social honour and disgrace and what can be accomplished by legislation.
I think the main difference that I have is that in the case of marital rape, a harm is being overlooked by an unvarying legal prescription of consent. In the case of gay marriage, it’s actually the same thing. By reducing prohibitions of marriage to consent alone (without regard to the type of sexual relationship involved), it can also become an unvarying legal prescription that overlooks the harm of a marital presumption of parenthood that overrides the unsurrendered rights of the genetic father. It’s naive to assume that the exclusion of same-sex couples from this presumption will continue unchallenged when other jurisdictions have priortised the presumed parenthood of the birth mother’s spouse above a biological father’s unsurrendered parental rights.
Andrew, your point is well taken, but still think that the parallel systems of legal marriage and civil partnership gave that flexibility without sacrificing the marital rights of fatherhood that are central to family integrity and that the rebuttable presumption of legitimacy protects.
In its place, we could eventually see a genetically unrebuttable marital presumption of co-parenthood conferred on the same-sex spouses of legal parents. That would be a travesty.