Does Everyone Have An Equal Right To Be Married?

Are all marriages equal? Do all have a right to marriage? The courts have decided that, all being equal before the law, all have the right to marry. While denying the historic moral basis for civil marriage the courts, at the same time, have mandated that it is immoral to deny the equal protection of the law to all who seek to be married. Does that mean that any who love one another has the right to marry the person they love? What about the bigamist, the polygamist, the polyandrist, the brother and sister, the father and daughter, the insane, the bisexual who might love both a male and a female simultaneously? Are they classes of people who are as disadvantaged in law as same-sex couples?

In the California case which overthrew Proposition 8, Judge Walker (who is a homosexual in a committed same-sex relationship) declared that there is no “rational basis in singling out gay men and lesbians for denial of a marriage license.” What is the rational basis for marriage that he denies?

Robert R.Reilly in MAKING GAY OKAY: How Rationalizing Homosexual Behavior Is Changing Everything, argues that one has a “right” or is “free” to marry only insofar as one is capable of being married. One does not have a right to a vocation in life whose duties one cannot perform. Does one have a “right” to serve in the military if one cannot physically meet its demands?

“What, then, might be the minimal demands of marriage that one must be capable of performing? One of those marital duties is actually physical, though its implications and true meaning extend far beyond the merely physical. Common law holds that a marriage is not full valid until it is consummated. What does consummating a marriage mean? It means and has always meant by law an act of vaginal intercourse between husband and wife. If this act does not take place, the marriage can be declared a nullity. Until consummation, it is subject to annulment. Therefore, becoming ‘one flesh’ is, or at least was, not optional for a legally valid marriage. If one is incapable of consummating a marriage or in simply unwilling to do so for any reason, there can be no marriage, and therefore the ‘right’ to it is irrelevant. Similarly, if one cannot perform as a fireman, the right to be a fireman is also irrelevant. How did Judge Walker get around this? By ignoring it…… For homosexual couples, the marital act is physically impossible….For these reasons, among many others, common law has held through the centuries that marriage can only be between a man and a woman.” (p.99)

It is also irrelevant to define marriage simply on the basis of having a happy, satisfying relationship with another. So can sisters, or brothers, or friends. We do not have a right to marriage based on emotional bonds and strong commitments.

At the back of the Book of Common Prayer of the Church of England, in which I was ordained, there is A TABLE OF KINDRED AND AFFINITY WHEREIN WHOSOEVER ARE RELATED ARE FORBIDDEN IN SCRIPTURE AND OUR LAWS TO MARRY TOGETHER. There are 30 forbidden relationships listed beginning, for a man, his Grandmother and lastly, his wife’s sister’s daughter. They did not have a right to marry in the church and in the laws of England at that time. The list is exhaustive of all possible relations. Not everyone has the right to marry another whom they may love.

In the Marriage Service that I use from the current Book of Common Prayer of the Episcopal Church the following prayer begins the Prayers:

Eternal God, creator and preserver of all life, author of salvation, and giver of all grace: Look with favor upon the world you have made, and for which your Son gave his life, and especially upon this man and this woman whom you make one flesh in Holy Matrimony. Amen

Christian marriage is between a man and woman whom God makes one flesh through their consummation on the marriage bed in a unitive and procreative act of love.

What do you think of the argument that all people have a “right” to marry? Is there a rational basis to forbidding certain people to marry? Why have the courts ignored the historic understanding of marriage in favor of an illusion?