What is marriage?

By RAY ADLER
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We can all agree that marriage has changed over the years, but do you know the legal definition? In Maynard v. Hill, an 1888 United States Supreme Court case originating out of Oregon, the Supreme Court stated in its opinion:

“Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.”

Moreover, the High Court reasoned that marriage:

“ … is a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest high of social life and the true basis of human progress.”

The case, when reduced to elementary principles, was about property rights in a divorce, but the facts were most interesting.

• David Maynard set off on the Oregon Trail without his wife, Lydia, and two children, stating that he would send for them. He never did.
• He falls in love with Catherine Brashears and in the interest of marrying his new love, seeks a divorce from the Oregon legislature, which is granted.
• Lydia, eventually shows up in Oregon to assert her rights to a portion of the land, which are ultimately denied.
• This case went on for many years. Eventually, Lydia did die, and her children took up the claim.

Black’s Law Dictionary defines marriage as the formal union of a man and woman typically recognized by law by which they become husband and wife.

As you may know, the courts and legislators have had great difficulty defining marriage. Is marriage something so sacred and holy it should not be defined in law at all? After all, the State does not define holy communion. Neither does it define baptism. Why is marriage different?

Marriage was a custom long before the State issued licenses. For a time, the records of marriage were kept by the church. Some states, even now, recognize common law marriage, which has neither the endorsement of the State nor the clergy. Some view marriage as a union of one man and one woman, primarily for bearing and raising children. Such a perspective places a high value on monogamy and fidelity. The welfare of children is why marriage is important to the common good, it is argued, and why the State should recognize and regulate it.

Others, however, believe that marriage is the union of two people, no matter the gender, who love and care for each other and share the burdens and benefits of domestic life, enhanced by whatever form of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and any children that they may choose to raise. Judge Z Irretrievably Broken, Tim Philpott (2015).

In Deboer v. Snyder (one of the cases which was consolidated and eventually come before the United States Supreme Court in Obergefell v. Hodges), the Sixth Circuit Court of Appeals opinioned:

“Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.”

For the first time in history, children can have many different parents. They can have a sperm donor parent, an egg donor parent, a birth parent, and social parents who raise the child, adoptive parents, and stepparents. Traditional marriage is one of the oldest institutions in civilized society and has been a bedrock of western society. What societal impacts will emerge from our country’s changing attitude and understanding of marriage? Have we already seen the impact?

Educational material and not legal advice, written by the team at Adler attorneys. Email andrea@noblesvilleattorney.com with questions or comments.