Juliet: “What’s in a name? That which we call a rose
By any other name would smell as sweet.”
William Shakespeare – Romeo and Juliet
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
The thing that surprises me most about the national debate here in the UK over whether to redefine marriage is how vacuous most of it is. Voices incessantly either bay for ‘equality’ (as if law can change physics), or wail on behalf of history and tradition (as if there is an inherent virtue in antiquity). What’s been missing is any serious consideration of what the purpose of marriage (as understood by law) actually is. This is beyond perplexing, as surely if you want to understand the effects of a change, you need to understand what you are changing from just as much as what you are changing to. The first step of redefinition is, ironically enough, definition.
Nevertheless, next to nothing is spoken on this topic, as everyone appears to assume that it’s obvious. Typically, something vague about ‘mutual long-term commitment’ or whatever. However, there is a little appreciated aspect of English marriage law that casts a different light on the issue. It’s been brought up by opponents of the current movement, but seemingly only as a technical roadblock for proponents who simply try to dismiss it as irrelevant. I speak of consummation.
These days, consummation is considered old-fashioned longhand for sex, but the word itself actually refers to ‘the completion of a thing’. By law, the process of forming a marriage is not complete until or unless the newlyweds have had sexual relations, and not just any old relations. We’re talking tab-A/slot-B type specificity here. There is no physical way that two men or two women can consummate a marriage in the manner required by law. When civil partnerships were introduced, this issue was bypassed by simply not making consummation a requirement, and it is expected that in some way, shape or form, that will have to be done again for same-sex marriage.
However, this is actually more significant than anyone appears willing to admit. The consummation requirement gives an interesting insight into the ‘purpose of marriage’ question. By requiring intercourse between marriage partners (and punishing in civil actions intercourse with others), the state makes a statement regarding the expected consequence of such intercourse, namely children. Indeed, much of the effect of marriage law concerns who is considered whose child. Even the words ‘marriage’ and ‘matrimony’, which in English we make synonymous, by so doing brings together both the genders and the concepts of being a lover and being a mother!
The legal recognition of marriage in this form propones the notion that children should be raised by those who brought about their existence, namely, their natural parents. This is to say that the legal expectation of children creates a claim of value for the natural family, that the togetherness of children with their parents is of sufficient worth as to merit state sanction. Marriage, as we currently know it, establishes the family as a key unit of society. Note that this construction doesn’t rely on children actually being conceived, merely on the requirement that the couple trys, under the understanding that if a child was to come, then they would be responsible for its welfare.
Most importantly, removing the consummation requirement removes the implicit state support for the notion. Without consummation, marriage cannot even really be considered to be about sex, let alone kids, as nothing in marriage law would actually require it. In that scenario, the question “What is the purpose of marriage?” becomes all the more relevant. If families are not an expected result of marriage, then privileging the married establishes couples (of some unspecified form) as the key unit of society, without reference to or regard to any children.
While all of this is to forget the Libertarian objection to marriage law, which is that society is comprised of individuals, that these individuals are the key unit of society and thus the content and context of any marriage-like relations must be privately established, as order imposed from without is meaningless.
The forms that we give our public social institutions are not void of inherent meaning. It is not a trivial thing to change what marriage is, but rather a statement of what our society values. Until the politics of our day truly embraces this fact, rather than merely paying it lip-service, it will continue to be as sounding brass and tinkling cymbals.