I’ve got a few posts in the hopper related to the California Supreme Court marriage ruling, but this one moved to the top of the pile as soon as it was brought to my attention. Of all the conservative responses to the California ruling this one takes the cake. I’ve written about the procreative imperative, which the right wing has tried to establish as the basis of marriage. I’ve written an entire (and ongoing) series challenging the rightwing notion that marriage is only for making babies and only for people who can (or possibly could, if miraculously cured of infertility) makes babies. (But not for people who can raise well-rounded, developmentally normal children they didn’t conceive together in loving, safe, supportive homes.)
This, however, makes all of that seem almost logical. Forget about making babies. Forget about raising happy, healthy children. In their increasingly desperate question to narrow marriage down to something two queers can’t possibly accomplish together, they’ve boiled it down to this: in order for a marriage to be valid a penis must go into a vagina.
California’s Supreme Court ruled last week that homosexuals have a constitutional right to marry because to deny them a status afforded heterosexuals was deemed discriminatory.
“Reserving the historic designation of ‘marriage’ exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples … equal dignity and respect,” according to Chief Justice Ronald George.
But in fact, permitting individuals of the same sex to describe their relationships as marriage gives them a right not extended to heterosexuals, for whom “marriage” is very narrowly defined.
Although a man and a woman may legally wed, the law does not consider the marriage valid unless it is consummated. A minister may have declared the couple husband and wife, the state may have issued them a license; they may share a name, a house, a bank account, and wear each other’s rings.
They may have engaged in various intimacies only Bill Clinton would not describe as sex. But unless the relationship includes the one act defining marital union, the marriage can be annulled because it is deemed to have never existed.
Why, then, should there even be a question of whether same-sex couples can marry? Applying existing law, the question is moot; homosexual marriage is physically impossible.
She’s serious, folks. (So much so, in fact, that the was probably too pleased with herself for having worked in the obligatory Clinton reference to remember that he was the president who signed the Defense of Marriage Act.) Until and unless that penis goes into that vagina you are not married.
I actually read the column all the way to the end, to see if the author had any supporting references for her claim that “the law does not consider the marriage valid unless it is consummated,” but I could find none. That’s because she did what a lot of conservatives do: the decide that whatever they believe makes so much sense that it doesn’t require support. “It’s just common sense.” After all. Unfortunately, saying it’s so doesn’t make it so.
There is one respect in which the author is right on consummation. Near as I can tell, a non-cosummated Catholic marriage is voidable, though not actually void until the Pope says so.
Catholic theology teaches that a validly contracted marriage is accompanied by divine ratification, creating a virtually indissoluble union until consummation, after which the marriage is completely indissoluble. An unconsummated marriage can be dispensed by the Pope, as Vicar of Christ.[2] Once the marriage is consummated, only a separation is possible; the marriage bond cannot be dissolved. Therefore, the term “divorce” has no meaning in the context of Catholic marriage.
That creates a bit of a problem depending upon how you look at it. Again, as near as I can tell (not being a scholar in Catholic theology), some Catholic theologians have asserted that Mary and Joseph’s marriage was never consummated.
Thomas Aquinas, decided that a virginal marriage could be a real marriage, they legitimated Joseph’s unconsummated union with Mary and initiated increasing interest in Joseph as a saint. Although many medieval writings on fatherhood viewed the role as one of power and discipline, some writers used Joseph as an example of the kind of father who parented “by love and service,” in the words of a 12th-century monk.
My guess that was necessitated by the belief that Mary remained a virgin throughout her life and died a virgin, thus never consummating her marriage to Joseph.
Where Gratian tried to conciliate between coital and consensual theories of marriage formation, Hugh of St. Victor and Peter Lombard took the consensual theory of marriage formation to its logical extreme. With good support from Augustine, Hugh developed his theory in two works composed in the 1130s. The first was a polemical treatise on the virginity of Mary, in which he rebutted an unnamed adversary who held views similar to Gratian’s.21 He later incorporated the theory of marriage developed there into his comprehensive treatment of marriage in the De sacramentis Christianae fidei, the first of the great theological summae.22 Hugh maintained, on the one hand, that Mary and Joseph were truly married, and on the other hand, that Mary was a virgin not only in body but also in mind, which is to say that she made her marriage vows while intending not to consummate her marriage (a problematic position under medieval canon law).
(An aside: I couldn’t help thinking how this might work for, day, a devoutly Catholic heterosexual couple who happened to be infertile. Would they be allowed to have sex, seeing as how it’s highly unlikely to include the possibility of procreation? If they can’t have sex, can they consummate their marriage? Can their marriage ever be valid? My guess is that there’s a biblical reference take care of this, in which some deity implanted life into the would of a three-hundred-year-old woman or something. So it could happen for our theoretical couple. But what if one of them — the man or the woman — are unable to engage in sexual intercourse with penetration?)
But medieval canon law is not today’s law, and church law is not civil law. Not yet, anyway, though the author of the column would probably like it to be. I only did a cursory check online, and not only did I find nothing to support her … um … theory, but quite a bit that would tend to undermine her thesis.
First there’s her apparent definition of intercourse, which to her clearly means penis-in-vagina only. That’s typical of people who tend to ask, “How can two men/two women even have sex anyway? How is that even possible?” Again, sexual intercourse means penis-in-vagina. Period. Except when it doesn’t. The author of the piece above doesn’t cite any supporting references for her assertion that sexual intercourse is exclusively penis-in-vagina. But I found a couple of sources suggesting that it used to be that way, but times have changed and that definition has changed with them.
Sexual intercourse, in its biological sense, is the act in which the male reproductive organ (in humans and other higher animals) enters the female reproductive tract, called copulation or coitus in other reference.[1] The two entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails.
Traditionally, intercourse has been viewed as the natural endpoint of all sexual contact between a man and a woman,[2] and is commonly confined to this definition today. The meaning of the term, however, has been broadened in recent years, and now labels at least three different sex acts. These three types of intercourse are: vaginal intercourse, involving vaginal penetration by the penis; oral intercourse, involving oral caress of the sex organs (male or female); and anal intercourse, involving insertion of the male’s penis into his partner’s anus.[2]
And, if you want a source bit more authoritative than Wikipedia, try Merriam-Wesbter.
Main Entry: sexual intercourse
Function: noun
Date: 17991 : heterosexual intercourse involving penetration of the vagina by the penis : coitus 2 : intercourse (as anal or oral intercourse) that does not involve penetration of the vagina by the penis
Not only that, but nothing I can find says that civil law requires a marriage be consummated — and that the consummation must consist of a penis going into vagina — before it can be considered valid. The legal section of the Free Dictionary defines Consummation of marriage but indicates that civil law does nt not require consummation.
CONSUMMATION OF MARRIAGE. The first time that the husband and wife cohabit together, after the ceremony of marriage has been performed, is thus called.
2. The marriage, when otherwise legal, is complete without this; for it is a maxim of law, borrowed from the civil, law, that consensus, non concubitus, facit nuptias. Co. Litt. 33; Dig. 50, 17, 30; 1 Black. Com. 434.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
Another source says that only a few states require consummation for a marriage to be valid. I looked up that Latin phrase, by the way, and it translates as: “Consent, not consummation, makes the marriage.” But that can’t be right, because even gay people can consent.
Speaking of consent, there is one aspect of marriage in which the author may be correct about consummation, if not about sexual intercourse. While in most states consummation of marriage, or proof of ability to consummate, is not a prerequisite to receive a marriage license, in many — if not most — states it looks like inability to consummate (impotence, unknown prior to marriage), failure to consummate, or intention to refuse to consummate are grounds for civil annulment.
Annulment happens after the fact, that is, after the marriage has taken place, and the process requires at least one party in the marriage to file a petition for annulment. A hearing follows, and if the petitioner proves his/her case the marriage may be annulled. All things being equal — and isn’t that the point? — annulment laws would apply equally to same-sex couples: if one partner turns otu to be impotent, unwilling to, or never intended to consummate the marriage, the other partner would have grounds for annulment.
Those are the facts as near as I can tell them. But what to make of the bizarre reductionism the radical right has resorted to in an attempt to deny marriage equality to same-sex couples. First, there was the rather strange argument that same-sex couples are guilty of gender discrimination, because same-sex marriages “lack gender diversity” (penis/vagina combination). Then there’s the bizarre argument that marriage is based on procreation, so it’s only for people who can (or could) make babies. Now it’s down to this. Marriage is founded on a penis going into a vagina. (How that would apply to a post-op transgender person marrying a partner of the opposite gender is anybody’s guess. But I think the author would amend her “consummation law” to state that the parties must be born with the penis and vagina in question for it to count.)
As crazy as it sounds, they seem to really mean it.
What to make of that? Where do you even begin to address it?
Crossposted from The Republic of T.
