Friday, June 9, 2023


By Tim Rohr

Warning: The following is long and kind of wandering. 


In this recent post, I said that Senator B.J. Cruz ("B.J.") was on to something with his (2009) domestic partnership bill and that I would get to it later. So here's the later.

B.J.'s bill would have made it legal for both same-sex and opposite-sex couples to form a domestic partnership which would mirror marriage but did not require solemnization, i.e. exchanging vows before a public official.

At the time, I thought that in the drama surrounding the whole uproar, that B.J. had forgotten to require solemnization. Maybe he did, but looking back on it, it really is where marriage is not only going, it is where marriage has already been, long before the government got a hold of it. 


Before there was such a thing as a marriage license or even the word marriage, a man and a woman were considered bound to each other - usually for life - by their being declared bound to each other, either by their families or by themselves, or by simply holding themselves out as bound to each other by cohabitating and having children. 

B.J.'s bill, even though it still required a license and a filing of some sort, basically hearkens back to this primitive way of forming a lifelong bond between two people. 

Primitive marriage wasn't lifelong because the couple said "till death do we part." Primitive marriage was lifelong because for the better part of human history death was certain if they DID part. 

What came to be called marriage was a naturally occurring primal institution that organically sprang from the impulse to survive.

Of all beings that breed, human offspring takes the longest to mature: on average 14 years for females and 16 years for males. In fact, most state marriage laws reflect this reality - setting those ages as the minimum age to legally marry. The ages are not arbitrary creations of law. They are the dictates of biology: when female and male humans are usually capable of reproducing. 

In primitive times (and even not so long ago), a man and woman would normally bear many children. Again, it was about survival. Infant mortality rate was high, but also many children were needed to produce food - either by hunting or farming - and also to defend the family against hostile outsiders. 

Thus Scripture speaks of children as arrows in a quiver. (Psalm 127)

Having many children - again for survival - meant that mom and dad needed to stick around (and stick together) to see their offspring to maturity, and also so that their offspring would be around to take care of mom and dad when mom and dad couldn't take care of themselves. 

It's just the circle of life, and our laws and court decisions (prior to 2015 - and I'll get to that) reflect this fact: the fact being that what we came to call marriage is a naturally occurring primal institution which pre-exists the political order and of itself was naturally ordered to procreation and "the very existence and survival of the race."

The U.S. Supreme Court even says so:

"Marriage and procreation are fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). 


I hate to break it to you, but for the better part of human history, the lifelong union of a man and woman, which came to be called "marriage," was not about "love." In fact, prior to the 1960's, the word "love" usually did not appear in any marriage formula or law. 

Here's the Catholic Church formula prior to Vatican II (1962-1965):

PRIEST: WILT though take N., here present, for the lawful wife, according to the Rite of our Holy Mother the Church?

MAN: I will

PRIEST: WILT though take N., here present, for the lawful husband, according to the Rite of our Holy Mother the Church?

WOMAN: I will

(The couple joins hands.)

MAN: I, N. N., take thee, N.N., for my lawful wife, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

WOMAN I, N. N., take thee, N.N., for my lawful husband, to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

PRIEST I join you together in marriage, in the name of the Father, and of the Son, and of the Holy Ghost Amen.

Nothing about love, only about law: lawful this and lawful that. That's because marriage was a lawful contract that could not be broken without lawful consequences. (And the same was true for secular marriages.)

Note: Modern Catholic theologians and thinkers prefer the word "covenant" over contract. But that's another post-Vatican II creation. Sure, marriage can be thought of as a covenant, but the traditional emphasis on the word "lawful" positioned marriage (at least in the Catholic Church) as an unbreakable legal contract.

After Vatican II (the 1960's), we begin seeing stuff like "to love all the days of my life" and stuff like that. The problem with that what happens when the couple no longer "loves" each other? - which happens to most, sooner or later. 


On top of this "love" stuff inserted into the Catholic marriage vows, the Church, in 1983, reformulated its canon (law) relative to the purpose of marriage to read:

Can. 1055 §1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring.

Prior to 1983, this is what the Church held:

Canon 1013, § 1. The primary end of marriage is the procreation and education of children; the secondary ends are mutual help and the remedy of concupiscence.

The 1983 code not only erased the hierarchy of ends (primary...secondary), it created a new end: "the good of the spouses." And by its placement in the code (before procreation), the new code made "the good of the spouses" the primary end (or purpose) of marriage.

One can argue all day long that the new code did not do what I just said. But no one can argue that since the new code was promulgated that the rate of divorce among Catholics hasn't exploded to match that of non-Catholics. 

And further, perhaps to cover for this radical implosion of the Catholic marriage bond, the number of decrees of nullity ("annulments"), especially in the U.S., have so scandalously exploded that Catholic World Report labeled the U.S. "Annulment Nation."

It's not hard to figure out. Once "the good of the spouses" became the purpose of marriage, or even one of the purposes, it's not long before one of the spouses, or both, don't feel so "good" about who they married. So, the marriage is kaput. And Church tribunals are kept busier than a cat on a hot tin roof processing, and usually granting, requests for annulments. 


Because there was nothing in U.S. laws or major court decisions relative to marriage that said anything about love, and in fact, (said laws and decisions) continued to emphasize that marriage was about procreation, same-sex marriage advocates needed to make marriage about love and not procreation - for obvious reasons.

Their favorite legal battering ram was the 1967 Supreme Court decision in Loving v Virginia, a decision that found state bans on interracial marriage unconstitutional. Same-sex marriage advocates latched on to a phrase in that decision and turned it into their battle banner. The phrase was:

“Marriage is one of the "basic civil rights of man..."  Loving v. Virginia, 388 U.S. 1, 12 (1967)

It worked. This phrase from Loving provided the key precedent in the 2015 SCOTUS decision holding bans on same-sex marriage to be unconstitutional. 

Amazingly, the same-sex marriage advocates succeeded in getting the Obergefell Court (and apparently their opponents) to ignore the fact that their battle phrase was only the first part of a longer sentence, the full sentence being:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).  Loving v. Virginia, 388 U.S. 1, 12 (1967)

It's right there. The Loving Court found state bans on interracial marriage to be unconstitutional pursuant to its finding in Skinner wherein the Court held:
We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. ” Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
Pursuant to Skinner, and by extension, Loving, marriage is about procreation and procreation is about marriage. And only in that context is marriage "a basic civil right of man."

Note: At this point it is necessary to address a common argument against the natural connection between marriage and procreation. Critics will call out examples of couples who are incapable of procreation due to age or infertility, and then attempt to impugn the procreative function of marriage. The short answer is this: Even healthy, fertile couples have no control over procreation. They only have control over the procreative act. Use your imagination.

But of course, in order for same-sex marriage to gain a foothold, "love" was made to replace procreation. 

And so Justice Kennedy (in Obergefell) wrote:

No union is more profound than marriage, for it embodies the highest ideals of love...marriage

Ah. A new precedent. Suddenly marriage is about "love"...when it never was before. 

Note: Something tells me that one day Obergefell will "fell," oops, I mean "fall," for the same reason Roe fell. There simply is NOTHING in the Constitution nor in our history that supports the notion of "love" as  grounds for marriage. 

However, who can blame Justice Kennedy, a Catholic, when his own Church opened the door that he (and the majority) walked through three decades later.

By inserting "the good of the spouses" into the definition of the purpose of marriage, the Church made marriage about love. And though the canon includes "procreation," procreation still comes, well, second. 

Thirty years later, Kennedy's Court would do the same.


So back to B.J.'s bill. Both the church and the state have made marriage meaningless. Oh, both still say the right words, but their actions...well, you know how that goes. 

No fault divorce, the constitutionalizing of same-sex marriage, and the wild fiasco of family law that has turned "big brother" into the new mom and dad, has made marriage an almost stupid thing to do - and it appears the younger generation gets this as an increasing number aren't even bothering. 

And, the Catholic Church's avalanche of annulments - and, the current pope's preference to fast track even more annulments, functionally giving credence to what others snicker as "Catholic divorce" - well, why even bother with a sacramental marriage when the Church you married in, can, even against your will, set your sacramentally married spouse free to marry someone else - and in the same the same altar...and right there in front of your face.

Note: Read this particular annulment adventure involving a famous U.S. Catholic family: Ex-Kennedy wife says Vatican overturns annulment

So maybe the heck with it. If two people want to spend their lives together and raise a family then let's go back to caveman days. In fact, more and more people are already doing it anyway. B.J., Dig out that bill.

A Final Note: Of course I am not rejecting sacramental marriage, and will never support SSM. I will believe in sacramental, potentially procreative marriage, and embrace it till I die because sacramental, potentially procreative marriage was instituted by Jesus Christ. If that makes me more Catholic than the pope, then so be it. Anyway, that's not too hard to do these days. 


  1. The widespread adoption of artificial contraception took away procreation as a fundamental reason for marriage for most. Call it the queering of marriage, paving the way for same-sex marriage, and soon, polygamy.

    1. Exactly. And the Catholic Church also opened the door to "widespread adoption of artificial contraception" when in 1961 when John 23 established a thing called "The Birth Control Commission" to look into the "question," and when Paul 6 expanded the commission from 7 people to 72 upon succeeding John. All of this activity around birth control led Catholics to believe that their Church was about to change its teaching. In fact, the commission overwhelmingly supported it. The commission never should have been established to "look into" a question that could only have one answer: NO. Paul 6 tried to close the door with Humanae Vitae but the horses had already left the barn. It appears Paul knew he screwed up. He never wrote another encyclical...about anything.