Marriage is, and always has been, an evolving institution created by human beings for human beings. Attitudes towards marriage change as society changes. Not so long ago, marriage rendered women the property of men. As late as about 30 years ago, “definitions” of marriage precluded the legal possibility of rape occurring within marriage. Nobody today seriously argues that women’s legal protection from rape within marriage is anything other than a positive development.
The idea that Judeo-Christian elements of marriage have remained more or less constant throughout history is a myth.
We long ago abandoned the biblical references in Deuteronomy and Leviticus to death by stoning being the appropriate penalty for adultery. And the way Christian churches have treated marriage has changed over time.
In medieval Europe a betrothal, or engagement to marry, occurred simply by couples exchanging vows that they intended to marry in the future. There was no need for the marriage to be witnessed by the Church. Marriage was not even one of the holy sacraments of the Catholic Church until the 12th century.
From the point of the betrothal couples could cohabit and sexual intercourse and children were regarded as consummation of the marriage. There was no rule against polygamy for some. Charlemagne, who was crowned as head of the Holy Roman Empire by Pope Leo III on 25 December 800, had twenty children over the course of his life with eight of his ten more or less concurrent wives or concubines.
It was not until the Council of Trent in 1545 that the Roman Catholic Church ruled that marriage would henceforth require witnessing by priests. It was only from this point that cohabitation, or “common law marriage”, when it occurred ahead of a formal Church ceremony, was regarded as “living in sin”.
Protestants took a different path. Unlike the Catholic and Eastern Orthodox branches of Christianity, marriage for Protestants has never been regarded as one of the holy sacraments.
Martin Luther described marriage as an “external worldly thing”, not to be regulated by the church. In 1653 the then Puritan government of England, declared that all marriages should be civil and were invalid unless performed before a justice of the peace.
After the restoration of the monarchy, the authorities allowed church marriages again. Then, following the French revolution, more and more countries in Europe declared marriage to be a civil arrangement. In Germany in 1875, Bismarck introduced a mandatory civil ceremony for marriage, removing marriage from the control of the Church.
Indeed even today in many countries in Europe, including France, Belgium, Holland, Germany and Switzerland, marriage, in the first instance, requires a secular procedure that may be followed up with marriage in a religious institution if the couple so desires it. The first and obligatory trip is to the civil registry and then, only for those who want it, there is a religious ceremony.
Much confusion about the so-called “religious nature” of marriage reigns in Australia and the USA because there is no requirement for a separate secular marriage process ahead of religious solemnization of marriage in these countries. Ministers of religion- priests, rabbis and the like- are authorized under the Marriage Act in Australia and under US laws to perform ceremonies that result in marriages that are recognized by the state.
There should be no need to change this arrangement. There is nothing wrong with a “one stop shop” for those couples who want a religious marriage. And nobody argues that the law should require religious leaders to conduct same sex marriages. The decision on this issue, as with ordination of female or gay priests, is a question of religious freedom to be determined by the relevant religious institutions themselves.
Liberal senator George Brandis has stated that marriage has a “deep religious significance”. This may be true for religious people. But it cannot be true for those Australians who are either not religious at all, or who are not so religious that they prefer marriage by a minister of religion over marriage by a civil celebrant.
The option of civil marriage was first introduced in Australia by the Whitlam Government in 1973. Since then, in the space of just 37 years, marriage via religious ceremony has become a minority practice. Of the marriages registered in Australia in 2008, approximately 35 per cent were performed by ministers of religion and 65 per cent were performed by celebrants.
In a secular democracy the state cannot legitimately refrain from extending the opportunity to marry to same sex couples just because some religious people see marriage as having a “deep religious significance” and want to impose a narrow and historically selective view of what marriage means, onto the rest.