Marriage Laws: When Does Government Intervention Become Necessary?

The involvement of governments in marriage laws has evolved over time and varies across different societies and historical periods. In ancient Rome, marriage was considered a civic duty, with legal conditions that had to be met for a wedding to be official. During the medieval period in Europe, local customs prevailed until the 13th century when the Church began to administer marriage as a sacrament, requiring the presence of a priest and the reading of banns. The first marriage licenses in the United States were recorded in the 17th century, and by the 1900s, they had become common across all states. The evolution of marriage laws has also been influenced by the separation of church and state, with civil weddings being introduced in France before the Revolution in 1787 to allow Protestants to marry outside the Catholic Church. The 20th and 21st centuries saw significant shifts in marriage laws, with a focus on equality and the recognition of same-sex marriages.

Marriage as a civic duty in Ancient Rome

Marriage in ancient Rome was considered a civic duty. It was a fundamental institution of Roman society, joining two families and serving as a tool for interfamilial alliances. The primary purpose of marriage was to produce legitimate heirs who would inherit their parents' property, status, and family qualities.

While marriage was governed by law, no state official was required to be present at the wedding ceremony. However, specific legal conditions had to be met for the wedding to be considered official. For example, both the bride and groom had to be Roman citizens or have special permission, called "conubium," to marry. Marriage was also used as a tool to control women's sexuality and reproduction. For instance, unfaithful wives divorced by their husbands were prohibited from remarrying.

During the Later Republic and early Empire, the state intervened in marriage due to falling marriage and birth rates. Emperor Augustus implemented laws to encourage marriage and childbirth, such as requiring all men between 25 and 60 and all women between 20 and 50 to marry and have children or pay extra taxes. These laws were not well-received and were eventually repealed or fell into disuse.

In ancient Rome, marriage was often not a romantic arrangement but a pragmatic agreement between families. Parents arranged marriages based on practical considerations, such as improving the family's wealth or social status. Divorce was relatively common and socially accepted, and both marriage and divorce were simple processes based on mutual intention and consent.

Marriage in medieval Europe

In the Middle Ages, getting married was easy for Christians. According to the church, which created and enforced marriage law, couples didn't need the permission of their families or a priest to officiate. Legal records show people getting married on the road, down the pub, at a friend's house, or even in bed. In England, some people married near churches to give greater spiritual weight to the proceedings, often at the church door. This still did not necessarily involve a priest.

Marriage was the only acceptable place for sex in the medieval period, and as a result, Christians were allowed to marry from puberty onwards, generally seen at the time as age 12 for women and 14 for men. Parental consent was not required. Marriage was also the only means of escaping the "sin of Eve", as the church presented women with two options: to become celibate or to become mothers.

Although the church controlled – or tried to control – marriage, it was not necessary to have a marriage witnessed by other people, as God was the ultimate witness. There was also a church service available, but it was not mandatory, and the evidence suggests that only a minority married in church. Many of those couples were already legally married by word or deed before they took their vows in front of a priest.

Consent to marry could be given verbally by 'words of present consent' – no specific phrase or formula was required. A 'present consent' marriage did not have to be consummated to count. However, if the couple had agreed to marry at some point in the future and then had sex, this was seen as a physical expression of present consent. Consent could also be shown by giving and receiving an item referred to in English as a 'wed', which was often a ring.

Divorce was not an option in medieval Europe. The only way to end a marriage was to prove it had not legally existed in the first place. Christians could only be married to one person at a time, and it was also bigamy for someone bound to the church by a religious vow to get married. As well as being single and vow-free, you also had to be marrying a fellow Christian. Breaking these rules automatically invalidated the marriage.

Marriage laws in the US

In the US, marriage laws have been influenced by a mix of religious and secular traditions, with the marriage law of most western European nations and that of the United States based on English marriage law. One of the first marriage licenses recorded in the United States was in colonial Massachusetts in the 17th century, around 1639. Over time, marriage licenses were adopted by various local governments, with each state passing its own laws to determine who could apply and how. By the 1900s, marriage licenses were a common part of the marriage process in every US state, and they were used to maintain census data, settle disputes, and enforce anti-miscegenation laws and bans against interracial marriages.

The US federal Defense of Marriage Act (1996) defined marriage as a legal union between one man and one woman and allowed states to refuse to recognize same-sex marriages performed in other states. Many US states passed similar laws or amended their constitutions accordingly. However, in 2013, the US Supreme Court declared the act's definition of marriage unconstitutional.

In recent years, there have been efforts to ensure marriage equality for all couples. Landmark Supreme Court cases such as Perez v. Sharp, Loving v. Virginia, and Obergefell v. Hodges have played a crucial role in this process. The Respect for Marriage Act, passed in 2021, provides statutory authority for same-sex and interracial marriages and prohibits the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin.

While marriage laws in the US have evolved and changed over time, they continue to be a subject of legal specifications and requirements that regulate the initiation, continuation, and validity of marriages.

Marriage equality

Over time, marriage rituals became more complicated, with the increasing recognition of women's rights, the need to protect children, and concerns over inheritances, estates, and property division. Religious institutions and governments also began to play a larger role in overseeing marriages. In the medieval era, when church and state merged, marriage became a thing regulated by national laws.

In the modern era, with the separation of church and state, marriage has remained in national law as the foundation of society. However, this is changing, with a push for marriage equality for all, regardless of gender or race. In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that state bans on same-sex marriage were unconstitutional, achieving a victory for marriage equality. Despite this, same-sex couples remain vulnerable, as there are still unenforceable amendments in many states that prohibit marriage equality.

Activists like Mary L. Bonauto and Evan Wolfson have played a crucial role in the marriage equality movement. Bonauto fought to legalize same-sex marriage in several states before arguing before the Supreme Court in Obergefell v. Hodges. Wolfson, through his unwavering optimism and singular focus, helped millions of people win the fundamental right to love and marry. Their efforts, along with those of many others, have paved the way for a more inclusive and just society.

The role of religion in marriage laws

In ancient Rome, marriage was considered a civic duty, and while a state official's presence was not required, legal conditions had to be met for the wedding to be official. During the medieval period in Europe, until the 10th century, people married according to local customs, and a priest's presence was not mandatory, though some requested a priestly blessing. It was only in the 13th century that marriage became a sacrament administered by the Church.

In England before the 13th century, the state's involvement in marriage was unclear. Christian couples could consider themselves married simply by making an agreement in front of witnesses, without the need to marry in a church. However, the Church, with its authority from the state, handled legal issues arising from marriages, including bigamy, illegitimacy, and inheritance disputes. This led the Church to implement changes in the early 13th century, requiring marriages to be celebrated in a church and introducing a notice period before marriage to prevent illegal marriages.

In France, civil weddings were introduced in 1787 to allow Protestants to marry outside the Catholic Church, and in 1793, marriage became a private contract, removing religious conditions. This example illustrates how state intervention in marriage laws can liberate rather than control.

In the United States, the distinction between "religious marriage" and "legal marriage" is important. "Religious marriage" refers to a religious ceremony where two people are joined in the eyes of their God and/or church. "Legal marriage," on the other hand, is a legal relationship where the government recognizes and confers rights upon a couple meeting specific criteria. While a couple need not have a religious marriage to have a legal marriage, additional steps are required for both, such as ensuring they can legally marry and fulfilling secular bureaucratic functions like signing a marriage license.

The evolution of marriage laws has been influenced by the separation of church and state, with some countries, like the United States, valuing religious freedom and establishing a clear divide between the two institutions. However, the history of marriage laws is complex, and the role of religion has varied depending on the cultural, historical, and geographical context.

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