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Earlier Marriage Law Traditions Offer Solutions for the Contemporary Marital Crisis

The history of marriage in the western tradition is multi-dimensional and holds clues to reversing the deterioration of the institution in modern times, according to Emory University Professor of Law John Witte Jr., who delivered the third Meador Lecture, "An Apt and Cheerful Conversation on Marriage: What Can the Western Tradition Still Offer to Marriage Law?" on Oct. 18. The Meador Lecture was instituted in 1997 by friends of professor Daniel Meador to memorialize his contributions to the law school over his 40-year teaching career. It aims to promote the interdisciplinary study of law and religion.

"Faith, freedom and family are the three things people will die for," Witte noted to open remarks that urged Americans to adopt a more pluralistic view of marriage law. While there is a tension now between what he termed "traditionalists" and "modernists" over marriage law, writers from Cicero to Calvin have also viewed their times as facing a marriage crisis.

But between 1975 and 1998, Witte said, 25 percent of pregnancies were aborted, half of all marriages ended in divorce, and there was a fivefold increase in the number of households with children but without fathers present. Now 40 percent of couples living together with children are not married.

"We must proceed on the assumption that the crisis can be solved," he said, and to do that we must understand how traditional morals and contemporary mores reflect a social tension between order and liberty.

The Roman Catholic Church asserted complete jurisdiction over the creation and dissolution of marriages until the Protestant Reformation. Catholic theology considered marriage to have a threefold nature: the natural (to raise children to serve God), the sacramental (to be a remedy for the sin of lust and to symbolize the relationship between Christ and the Church) and the contractual (which called for the consent of the man and woman to the union). The insistence on voluntary unions in the Church's canon law was a "watershed in western legal history," said Witte. "It set basic rules that persist to this day."

The Protestant reforms of the 16th and 17th centuries replaced the sacramental model with a social model. Protestants rejected the moral subordination of marriage to celibacy, which Catholicism considered a more holy renunciation, and the idea of a sacramental union. Protestants said celibacy is not more virtuous than married sexual relations. Thus Protestant theology directed marriage more toward civil law but meanwhile retained many of the features of canon law.

"It's only in the past two generations that traditional marriage has changed," Witte said. "It is now seen as mainly contractual. It's seen as a simple terminal bilateral contract."

Reflecting advances in reproductive technology and mounting economic demands on the household, "adults have free entrance, free exercise and free exit from marriage. Now marriage is a private sexual contract."

The dissolution side is getting streamlined too. "Alimony and child support payments are now giving way to lump sum payments that allow a clean break," Witte noted. The changes "have brought ruin to many women and children," he said, and men are still generally the greater beneficiary in divorces.

While the West has learned to balance the stringency of marital formation and dissolution, he said - "Loose formation rules require loose dissolution rules" - the earlier Christian tradition needs to be redeployed for today. It sees marriage as multi-dimensional and would reduce our tendency to simplify marriage to a single forum. Traditionally, for example, an annulment was granted "when a bad contract was made because a flaw was concealed from one of the parties. A divorce happened when a good contract was made but broken through the fault of one party. Today most states have collapsed annulment and divorce into one single act.

"We must resist the collapsing the stages of marriage. We should restore a reflective waiting period - engagement - and require more public notifications," the old practice of announcing the banns, said Witte. "The cause of the increase in no-fault divorces is really no-faith marriages."

While Witte called upon Americans to "enlarge our concept of the household to include new members," he said the western theological and legal traditions have little to offer those want to extend the institution of marriage to homosexuals. Homosexual unions are not seen as another form of civil union, partly because Catholic canon law prohibited the acts involved in homosexual unions. Because Protestantism has always maintained that marriage is based on love (rather than being a way to rescue individuals from lust) it presents less theological opposition to gay marriage.
• Reported by M. Marshall

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