My wife and I were married twice on June 30th, 1973: legally by the Oxford County Registrar so as to change our legal status from that of two single individuals to that of a married couple according to the laws of Great Britain and Northen Ireland and sacramentally within a Mass by exchanging our vows according to the rites of the Roman Catholic Church in front of the Catholic Chaplain of the University of Oxford.
While the marriage laws of the Catholic Church are universal, the Civil ones vary from country to country and from province to province within Canada. This obviously complicates comparisons between these two types of marriages. I will consider here the laws pertaining to marriage existing in the Province of Québec, laws found in its Code Civil.
As the officiating minister of religion is (normally) an officer of the State,1 Christians who marry in a religious ceremony tend to forget that they were also married according to the Law of the land by a dutifully recognized «civil servant».
Matrimonial laws existed during the early Roman republic.2 These changed to reflect the new mores first in the case of the Roman Republic3 and then in the case of the Kingdom of France4 which had inherited the later Roman Republic's laws. These were again changed within Québec's Code Civil.
In our day and age, the rules of Civil and Catholic marriages diverge considerably. This is recognized by the Code Civil which states that no minister of religion can be forced to marry people against his religion.5 Among the divergences, divorce is permitted by the State6 in the case of its Civil marriage but not by the Church in the case of any marriage it recognizes; a Civil marriage between divorcees is permitted by the State but a Catholic marriage between them is not permitted by the Church; a Civil marriage between a non-Catholic and a Catholic is permitted by the State while a Catholic marriage between them can only take place if certain conditions are met.
The Catholic Church only recognizes a marriage solemnized according to its rites if at least one of the spouses is Catholic while it recognizes any type of marriage between non-Catholics. This, while the State only recognizes Civil marriages, that is, marriages that have been solemnized by someone so authorized by the Minister responsible for civil status.
There are some common grounds between the Civil and
the Catholic marriages in the Province of Québec as they both:
(1) use the term «marriage»
(2) limit how close genetically the two spouses can
be7
(3) until now defined it as the union between a man and a
woman8
(4) insist that marriage is between two unwed
persons9
in front of witnesses10
after issue of a public notice some time ahead
of their intention to
wed.11
Québec society is now thinking of defining Civil marriage, the only type of marriage under the jurisdiction of the government, as the union between two people, thus permitting two individuals of the same sex to marry. This change is required to satisfy the fundamental principle of equality of all under the Law. No other change is contemplated.12
The Magisterium of the Catholic Church, Evangelicals, Muslims and Jews are up in arms against such a change in the definition of Civil marriage. They affirm that the State has no right to change the meaning of the term «marriage» which they claim has always been reserved to the union of one man and one woman.
These religious leaders' rebuke is odd as the Qu'ran clearly permits a man to have three wives and as Moses, Gedeon, David, Salomon and so many others had wives galore and numerous concubines to boot! So their claim about point (3) contradicts their Holy Books!
We must remember that Israel's laws, civil, criminal and religious, are all said in the Torah to have originated from God himself. The Torah, like the Qu'ran, does not establish a democracy as is the Canadian Confederation but a true theocracy, a régime where God is the Power on the throne, just like in Iran.
Jesus on the other hand does not believe that the civil and criminal laws found in the Torah are of God as He clearly states that some were from Moses13 rather than God, disobeys others14 or makes one impossible to carry through by His opinion in the case.15
In response to Moses' divorce law as found in the Torah, Jesus' statement that marriage is the union between a man and a woman, which after all was the only type of legal union that existed in His society, was made to point out that it should not be dissolved at the whim of the husband. He was challenging the legal right of husbands to dispose of their wives as any other part of their property. He insisted, with the help of the Torah itself, on the egalitarian character of marriage and the primacy of that alliance over all others, points which are definitely respected in the present legal definition of Civil marriage16 and even in its proposed form. Of course one can also conclude that for Jesus marriage was a lifelong commitment on both parts, something that is not respected in the present legal definition of a Civil marriage and is maintained in the proposed form.
We must not forget that in Jesus' time, and for most of the history of humankind, the reason why a man took a wife was to have children by her; the reason why a woman took a husband was to be protected by him and the children he would «give» her. The couple needed children so that they could help provide for them as long as they were part of their family and later in their old age as their married children. Of course, sex also gave them some relief and in many cases a sought after and needed pleasure, but that pleasure in itself did not provide them with any security or any help in facing the hostile world in which they lived.
Couples were thus expecting help from their children as they grew older: these were to work for them as long as they were single and also help them after. This help from their married children could be forthcoming only if the couple had taught them to do so by the way they had treated their own older parents. Those who gave their own children the bad example in that they avoided helping their own old parents after leaving home would not get the help they needed and so could not expect to live to a ripe old age.17
As couples of the same sex would be childless, they could not count on any help later on. So marriage between them was out of the question.
Today's society is completely different from the one just described. To live to be old does not require bearing children. So children are not seen in the same light as in Jesus' time. This is why married couples do not have as many children as before. Children are now financial liabilities as well as a source of joy. They cannot be expected to work for the family from an early age but are at their parents' expense until they leave home.
Children are not necessary to a couple's survival through old age: money put aside, pension funds, social policies guarantee that. On the contrary, children are an impediment to the future welfare of their parents as they eat up monies that could have been put away for their future. Of course, children are needed to provide for the elderly, but in our society the ones who can pay more are better looked after than the poorer ones, the ones who gave society the manpower required to maintain these services.
All this is to say that the need to have children does not exist for couples. Children are nearly a luxury to those with an income (though still a source of revenue to those on welfare). Those with a job cannot afford too many even when they are ready to sacrifice a lot for them as their education and upbringing are expensive.
So people today do not get married to bear lots of children but for companionship, love, support. Sex is not basically for procreation. Sex is a way to show love and to give much needed relief from the tension of modern life, a life where both have to work to make «ends meet», that is, live with roughly the standard of living of the majority.
In this different social environment, marriage between people who cannot procreate through their union is not to their detriment: they simply either do not bring up children, like quite a few of today's heterosexual couples, Catholic or not, or they bring up children born outside their union.
The Roman Catholic Magisterium has yet to come to terms with this social change. It would love to reverse it, to go back to Jesus' society. It is very much like trying to go back to a preindustrial society: an impossibility except if a gigantic catastrophy eliminated most of the world's economic and social infrastructures (as well as most of its population). Longing for the past does not bring it back.
The Magisterium's insistence that children must be brought forth as before regardless of their cost refuses to take into account the cruel fact that children are now liabilities rather than assets; it also forgets that young children used to die in large numbers, as their parents either could not afford to feed them all or had no need for some of them which would suffer «benign neglect». The Church also forgets that children had no rights until quite recently, so their survival really depended on their parents. This too has changed.
Children rights, the obligation to send them to school, the laws preventing young children from working for their families are all working against the raison d'être of large families. And, by the way, was the Magisterium for these laws and rights when they were enacted? was the Magisterium for the abolishment of slavery and slave labour? Was the Magisterium on the side of democracy when it was implemented? Or has it always been the champion of past régimes?
That the Roman Catholic Church's Magisterium insists on sticking to the past is a major disaster for the whole Church, as this makes the hierarchy out of touch with the world in which the rank and file are living, at least in the West. When the hierarchy tries to stop the State from adjusting its laws to conform them to its citizens' vision of what a marriage is and what it is for, what fairness is and how it must be applied, it shows itself to all as a bully trying to interfere in a field outside its jurisdiction. The Province of Québec as well as Canada have taken great care to respect Catholic marriages; the hierarchy owes them the same respect towards its Civil marriage.
The State answers to its citizens, whose opinions are shaped by the world in which they live rather than by the diktats of Pope, rabbi or mullah. Canada is not a theocracy: the Magisterium can always try to force its will on Catholic voters, but I can confidently predict that it will be to no avail.
Solemnity of Saint John the Baptist and Fête Nationale du Québec, June 24 th, 2004
1 For example: «In addition, every minister of religion authorized to solemnize marriage by the religious society to which he belongs is competent to do so, provided that he is resident in Québec, that he carries on the whole or part of his ministry in Québec, that the existence, rites and ceremonies of his confession are of a permanent nature and that he is authorized by the minister responsible for civil status.» Code Civil, Art. 366 Paragraph 2 (The emphasis is mine)
2 «Under the old Roman Law, at a time when the matrimonial union was still defined as a «consortium omnis vitae» (Modestin, I Dig. de rit. nupt. 23-2), the wife could neither retain nor acquire during the marriage any property of her own. In fact, she was so entirely under the power of the husband that she became a member of the latter's family and the sister of her children. There was only one patrimony and it belonged solely and exclusively to the husband.» Address of Mr. L. E. Beaulieu, K.C., LL.D. President of the Canadian Bar Association, from the Minutes of proceedings of the 24th annual meeting of the Canadian Bar Association held at Quebec, August 1939, Ottawa 1940, pp. 59-69. The complete text of this address is found here.
3 «But during the last period of the Roman Republic, divorce became so frequent that marriage was no longer considered a life association; so much that, as was said by a moralist, women in those days no longer computed the years, as it was customary in the good old time, by the names of the consuls, but by the names of their successive husbands. Under these conditions the old system whereby the husband became the sole master of the wife's property, as well as that of his own, could no longer subsist. It was replaced by a régime of complete separation of property, so complete indeed that, so far as their mutual interests were concerned, the consorts were really aliens.» L. E. Beaulieu, opus citatus
4 «This legislation was considered as conflicting with the Christian ideas respecting the mutual confidence and co-operation which should govern the matrimonial relations, and gradually a new system - the community of property - was organized in various parts of the Kingdom of France, and more particularly in and around the heart of the country, that is to say, the City and Viscounty of Paris.» Opus citatus
5 «No minister of religion may be compelled to solemnize a marriage to which there is any impediment according to his religion and to the discipline of the society to which he belongs.» Code Civil, Art 367
6 «Marriage is dissolved by the death of either spouse or by divorce.» Code Civil, Art. 516
7 «The officiant may not solemnize the marriage unless: ... (4) neither spouse is, in relation to the other, an ascendant, a descendant, a brother or a sister.» Code Civil, Art. 373 Paragraph 2
8 «Marriage may be contracted only between a man and a woman expressing openly their free and enlightened consent.» Code Civil, Art. 365 Paragraph 2 (The emphasis is mine)
9 «The officiant may not solemnize the marriage unless: ... (3) the intended spouses are free from any previous marriage bound;» Code Civil, Art. 373 Paragraph 2
10 «In the presence of witnesses, the officiant...» Code Civil, Art. 374
11 «Before the solemnization of a marriage, publication shall be effected...» Code Civil, Art. 368 ss
12 which means that the degrees of kinship, for instance, will not change, contrary to what some religious leaders have wrongly implied.
13 «He saith unto them, Moses because of the hardness of your hearts suffered you to put away your wives: but from the beginning it was not so.» (Matthew 19:8)
14 Jesus does not fast like His religious Jewish contemporaries (Mark 2:18-20) and plucks ears of corn on the sabbath and calls Himself «Lord ... of the sabbath» (Mark 2:23-28)
15 as in the case of the woman caught in the very act of adultery (John 8:3-11)
16 «The spouses have the same rights and obligations in marriage. They owe each other respect, fidelity, succour and assistance. They are bound to live together.» Code Civil, Art. 392 (Articles 393 to 400 go into more details on this.)
17 This is why we read: «Honour thy father and thy mother, as the LORD thy God hath commanded thee; that thy days may be prolonged, and that it may go well with thee, in the land which the LORD thy God giveth thee.» Deut 5:16 (The emphasis is mine)