The ABA Family Law Section published its White Paper: An Analysis of the Law Regarding Same-Sex Marriage, Civil Unions, and Domestic Partenerships. Here is its section on the history of marriage (excerpt, with footnotes omitted):
A review of the history of marriage shows that the institution of marriage, rather than being a single, unchanging concept of one man and one woman committed to each other for life, has been a fluid paradigm, changing with the culture and societal norms of the time.
Originally, polygamy (having more than one wife at a time) was common in ancient civilizations in the middle east. In the Bible, for example, marriage was traditionally polygamous. Abraham was married to both Sarah and Hagar and had children with both.1 Jacob married Leah and Rachel, and then married two of their maidservants. 2 He had children with all of them. Solomon was said to have had more than one thousand wives.3 The Bible also recites that a deceased husband’s brother was to marry his widow, even if he was already married.4 The Code of Hammurabi, written in approximately 1780 B.C., also makes reference to a man being able to take a second wife.5 When referring to marriage, the code refers to “man and wife” or “woman and husband.”6
Polygamy was, and still is, common in Islamic cultures. The Quran permits a man to have up to four wives. Indeed the Prophet Mohamed was said to have taken four wives.7 Even today, polygamy is found throughout the Middle East
In Asia, the major religions are Buddhism and Hinduism. Buddhism neither prohibits nor allows samesex marriage. This position of neutrality arises from the belief that individuals should move to the good, and each person must determine what is good for him or herself.8 However, King Sihanouk of Cambodia, a predominantly Buddhist country, recently proclaimed that same-sex marriages were to be allowed in his kingdom.9 Hinduism does not condone same-sex marriage; instead it defines a marriage as the joining together of one man and one woman into a single spirit.10
When reviewing marriage in Greek culture, the marriage tradition of seventh century Sparta deserves special mention. The role of woman was solely to be a reproductive mother and considered the equal of, and as important as, the role of reproductive father. Marriage was viewed simply as a basis for procreation. Procreation was not limited to “married” couples.Wife-sharing and selective breeding were common practices in Sparta’s quest for the production of strong warriors. Spartan society prized physical strength and encouraged the breeding of children, especially males, for strength.Thus, if a man were not physically strong, he likely would not procreate with his wife and instead would allow a stronger man to impregnate her. Moreover, if a union did not produce males, the woman was encouraged to seek another man to impregnate her so that she could have a son.11
Polyandry (having more than one husband) was practiced in Central Asia, particularly in Tibet, Sri Lanka, and southern India, and a few areas in Africa.This practice is believed to have arisen from a demographic imbalance: men far outnumbered women or were absent for long periods of times.12
For upper-class Romans, marriage was simply a matter of consent. In second-century Rome, marriage contracts between two men of the same age were permitted, but often were ridiculed.13 A woman and man who lived together for more than one year were considered married. Likewise, parties who announced their intention to be married in front of ten witnesses were considered married. An elaborate civil or religious ceremony was not necessary, and marriage was basically a private affair. Under Roman law, marriage was a way to determine property distribution, ownership, and inheritance.A woman, once married, became legally removed from her former family and could not inherit from them, nor could she own property in her own name. Indeed, any property she owned at the time of the marriage passed to her husband.14
In about the tenth century, Rabbi Gershom of Germany propounded a formal regulation for all Ashkenazic (European) Jews, which stated that polygamist marriages were illegal.15
The Catholic Church was not formally involved in marriage ceremonies until the Middle Ages. Up until the twelfth century, if a priest were present at a marriage, he performed blessings and prayers during the ceremony and,in addition,the couple would offer their own prayers.The priest then asked the couple to agree to be committed to each other in the presence of all present.16 From the fifth to approximately the fourteenth century, the Roman Catholic Church conducted special ceremonies to bless same-sex unions,which were considered spiritual, though not sexual, unions.17
In England, weddings in the thirteenth century among the upper class became a religious event, but even then, the church only blessed the marriage and did not require the parties to make a civil, binding commitment to each other.18 That changed in 1563, however, when the Council of Trent defined Catholic marriage as a ceremony celebrated by a priest in a Catholic church before two witnesses. By the seventeenth century, the wedding ceremony was a religious event in all of the countries in Europe.
In 1753, England passed the Marriage Act, which took control of marriage from individuals and the church and vested it in the state as a legal entity.19 From that point on, marriages that had not taken place in the Church of England or in a synagogue were rendered invalid. Although church law had regularized the ceremony of marriage by insisting that banns were read and licenses paid for, prior to 1753, the civil law required only that a marriage could be proved to have taken place. In less than one hundred years, a second act, the Marriage Act of 1836, was passed. During the period between 1753 and 1836, many people simply refused to marry officially because they did not recognize the authority of the relatively new Church of England.The new act reflected the essential view of marriage by the culture of the time, which was that marriage was a civil action effected by mutual consent and did not require a religious ceremony.20
During Colonial times, Americans followed the customs of England. Thus, a religious ceremony was secondary to a civil ceremony in many colonies. In some colonies, civil magistrates were given authority to perform marriage ceremonies without any religious requirements. Some colonies, however, required that the customs of the church prevail and did not permit a civil marriage ceremony. Virginia was one such colony.21 Common law marriages were common, and some states still allow them today.22
During colonial times and until the Emancipation Proclamation, slaves were not permitted to marry. Often, however, slaves did marry religiously, with another slave who was the leader of the church in their area officiating. The government did not recognize the union, and slave owners retained as property any children of the “marriage.”23
In the seventeenth and eighteenth centuries, marriage in America evolved into the monogamous one-man one-woman model of today. This mode, however, was never totally accepted in American society. Several major philosophies and religions rejected the one-man, one-woman model. For example, Mormonism, a uniquely American religion, had as one of its basic tenets the practice of polygamy. Before Utah was allowed to enter the Union as a state, it was forced to outlaw polygamy. However, some Mormons still practice polygamy in Utah and other Mormon areas of the western United States.24
In addition, during the nineteenth century, the Utopians were a religious movement that considered the transformation of the institution of marriage to be fundamental to their visions of a reordered society. Members of the Oneida Community in New York, for example, practiced “complex marriage.” Adult members of the community were considered married to all other adults members of the community, and sexual contact was regulated solely by the group.25
During the early part of the twentieth century, advocates of the “free love” movement argued that monogamous marriage oppressed women and that marriage was an obsolete institution.26 At the same time in America, cohabitation between heterosexual couples without benefit of marriage was illegal. Indeed, in the 1990s, in six states (Florida, North Carolina, North Dakota, Mississippi, Virginia, and West Virginia) cohabitation was illegal,27
although after the U.S. Supreme Court decision in Lawrence v Texas,28 the validity of such laws is in question.
Marriage laws in America have changed throughout its history. For example, until 1930, twelve states allowed boys as young as fourteen and girls as young as twelve to marry with parental consent.29 As late as 1940, married women could not make a valid contract in twelve states.30 Consanguinity laws continue to differ among the states.
Until 1967, in some states, a union between a white person and a person of color was void ab initio. At one point, forty states in this country made the marriage of a white person to a person of color a crime, and such marriages were decried as immoral and unnatural. In 1967, the U. S. Supreme Court in Loving v. Virginia31 struck down laws prohibiting interracial marriage as a violation of both due process and equal protection under the Fourteenth Amendment.The Court said:“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . .”32 In a later case, the Supreme Court echoed that view stating: “the right to marry is of fundamental importance for all individuals.”33
The Census Bureau reports that in the year 2000, there were 54.5 million married couples in the United States (made up of a man and a woman). In the same year, there were 5.5 million couples that were living together, but were not married.34 Of the unmarried couples, about one in nine (594,000) had partners of the same sex. Of the couples of the same sex, 301,000 couples had male partners and 293,000 had female partners. The Census Bureau explained that “These unmarriedpartner households were self-identified on the census form as being maintained by people who were sharing living quarters and who also had a close personal relationship with each other.”35 The report of the number of unmarried couples may have been lower than the actual number because of reluctance by some respondents to list themselves as being “partners.”
The institution of marriage has changed over the centuries and is likely to continue to do so.