I was asked by one of my readers to discuss the following question, outside of the context of religion-
“What’s the purpose of Marriage?” This is a question that can be answered in a myriad of ways. Since the beginning of civilization this institution has come to carry religious, cultural and legal significance. And while one cannot fully understand the purpose of marriage without discussing all three; for this conversation, I will focus primarily on the purpose of marriage as defined by legal precedent.
How is marriage defined?
Black’s Law Dictionary Fourth Edition had three definitions of marriage.
The first definition was a
“... condition, or relation of one man and one woman united in law for life ...”.
Subsequent editions inserted
“or until divorced”.The second definition in Black’s Fourth was
“A contract, according to the form prescribed by law, by which a man and woman, capable of entering into such contract, mutually engage with each other to live their whole lives together...”
Please note that the legal definition refers to a man and a woman. As a matter of fact, since the beginning of time, marriage has always been defined as a relationship between a man and a woman.
• Marriage:
“That honorable contract that persons of different sexes make with one another.” A New General English Dictionary (1740).• Marriage:
“1 a (1): the state of being united to a person of the opposite sex as husband or wife . . .” Merriam-Webster online, April 20, ( 2005).
Now this is not to say the people don’t change the definitions of words. But in order to properly deduce what the authors of the follwoing legal opinions are trying to say, we must understand their words in the context in which they used them.
What role should government play in marriage?When discussing the purpose of marriage from a legal standpoint, we must first understand government’s relationship to marriage. According to
Meister v. Moore (1873) Marriage is not a right conferred by the state.
…everywhere is considered a civil contract. Statutes in many of the states it is true, regulate the mode of entering into the contract, but they do not confer the right.
And the reason that the state cannot confer this right is because the courts have deemed that it finds it roots in a power above even their own. As stated in
1892 by the Washington State Supreme Court regarding. McLaughlin’s Estate
marriage is a natural right, which always existed prior to the organization of any form of government, and all laws in restraint of it should be strictly construed in consequence thereof. It is held it should be the policy of the law to sustain all such contracts and relations whenever possible, and that this should always be done ...[590 marriage has] its origin in divine law”
So why does government regulate and promote marriage?Legal precedent tells us that it is to create the optimum environment to have and raise children. As stated in
Baker v. Nelson (Minn. 1971)
The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”The same logic was part of the
Skinner v. Oklahoma (1942):
Marriage and procreation are fundamental to the very existence and survival of the race.
Understand that this does not mean that the only people who can get married are those who desire to have children. In this case, the law has and educational function- to tell what is normative. And while not all opposite sex couples will produce children, it is still normative for them to do so. However, it is impossible for any same sex couple to naturally produce children. Therefore, it cannot be normative.
So why does the state ascribe certain rights only to married couples?Well first of all , it is wrong to think of these benefits as rights. A better description would be to call them incentives.
In
Maynard v. Hill (1888) the court acknowledged that just how important marriage is to society:
“Marriage... 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... the law steps in and holds the parties to various obligations... for it is the foundation of the family and of society, without which there would be neither civilization nor progress... It is a relation for life...”This means that how we handle this institution as a society will have a lasting effect on generations to come. This is why every effort to change the definition of marriage has failed. In
Williams v. North Carolina (1942) the court ruled against efforts to legalize polygamy because of the effect it would have on the children.
That choice in the realm of morals and religion rests with the legislatures of the states... Within the limits of her political power North Carolina may, of course, enforce her own policy regarding the marriage relation-an institution more basic in our civilization than any other. But society also has an interest in the avoidance of polygamous marriages and in the protection of innocent offspring of marriages deemed legitimate in other jurisdictions.
And according to the US Supreme Court in
Maynard v. Hill (1888) marriage is not a right granted by the state. It is an institution that the state has an interest in regulating and promoting. And that interest is rooted in protecting the offspring:
“marriage is a thing of common right... any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law”
This is why the court quoted Skinner when it opted to once again to preserve the definition of marriage as between a man and a woman in
Loving v. Virginia (1967).
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.
So what is the purpose of marriage?While there are other cultural and religious purposes for marriage, when it comes to regulating marriage, the state has made it clear. The purpose is to create the most positive environment to have and raise children.
Pennsylvania Gubernatorial candidate and NFL Hall of Famer, Lynn Swan
Syndicated Talk Show Host and Author, Hugh Hewitt 
