Santorum on gay marriage

[JustinW]

ewmon,

 

I wonder if marriages started becoming contractual/legal procedings because of authoritative laws against stuff like incest, multiple spouses, etc... I could be wrong on this because I haven't done any historical research on the subject, but it would make sense that that is the reason that a secular form of authority plays a part in marriage.

If you notice under the reasons for divorcing there isn't an actual breach of contract compared to the vows you exchange. I wonder why that is. You would think that from a legal stand point that a breach of contract would have to be fairly specific when it comes to the lettering of the contract. It's given me something to think about anyway.

[ewmon]

ewmon,

 

I wonder if marriages started becoming contractual/legal procedings because of authoritative laws against stuff like incest, multiple spouses, etc... I could be wrong on this because I haven't done any historical research on the subject, but it would make sense that that is the reason that a secular form of authority plays a part in marriage.

 

If you notice under the reasons for divorcing there isn't an actual breach of contract compared to the vows you exchange. I wonder why that is. You would think that from a legal stand point that a breach of contract would have to be fairly specific when it comes to the lettering of the contract. It's given me something to think about anyway.

Great response.

 

I think societies (whether religious or secular) made marriages "official" mostly for the stability/strength/success it offered societies due to "the family" and its success being a very important element to most societies. For example, many people are surprised that, although alienation of affection has been abolished in most states, jilted spouses can still sue interlopers for it in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah as this recent high-visibility case and this other one shows.

 

Although my legal knowledge is appreciable, it is also limited. Maybe my view of marriage was incomplete, and so, maybe marital breaches are tortious as well as contractual.

 

The term "tortious" refers to a civil wrong called a "tort", which, quoting Wikipedia above, is

 

a personal injury; or "a civil action other than a breach of contract."

A common example of a tort (although unrelated to marriage) is trespassing. People do not contract one another not to trespass on each other's properties, and most people do not explicitly assert exclusive rights to their property by posting "No Trespassing" signs, yet people generally understand that it is "wrong" to go onto another person's property without permission — aside from the limited access of walking up someone's sidewalk or driveway for the purpose of talking to them and/or giving or leaving something for them, etc.

 

So, a marriage may also be society's unwritten recognition of the parties' exclusive rights to the fidelity/faithfulness/allegiance, companionship/emotional support, physical/financial support, kindness/mercy/compassion, etc that are due one another in such a relationship. Certainly now, with no-fault divorces, the courts really don't care why one person no longer wants to remain married to their spouse. Entering into marriage, at least in secular society, there's no minimum legal obligations for marriage other than simply agreeing to enter into the marriage, so the ultimate evolution of grounds for divorce to include "no fault" really shouldn't surprise anyone. And likewise, when there's no legal obligations for marriage, then same-sex marriage really shouldn't surprise anyone either.

 

To further illustrate the difference between a tortious wrong and a contractual wrong, a Christian lawyer (yes they do exist) once enlightened me as to the slight difference (unnoticed by most Christians) between the two translations of the Our Father prayer, where one tells us to forgive our debtors and the other says tells us to forgive those who trespass against us. Our debtors are parties to explicit contracts with us (either written or oral), whom we should then forgive if they fail to comply with the terms of the contract. On the other hand, someone who trespasses has not made any explicit promise as to his behavior, yet has violated a generally understood obligation to his fellow citizens, for which we should forgive him. So, technically speaking, forgiving those who trespass against us forgives a wider and inclusive range of sins compared to forgiving our debtors.

[JustinW]

I didn't think about it that way, but now that you mention it, it does make sense. It would also explain why divorse is much easier now days than it was when we were historically more fundamentally religious.