In 2015, Nick and Sarah Jensen announced that if Australia legalized same-sex marriage, they would divorce one another in protest. Nick explained that he loved his wife but insisted that “any attempt to change the definition of marriage by law is not something in which we are able to partake.” They were widely mocked: a couple so self-important that they would scupper their own marriage to spite the homosexuals. Since the referendum, those with good memories and a sense of schadenfreude have been eager to remind the Jensens of their promise. They have now announced that they will not be getting divorced after all: “a VERY humiliating backdown”, crows the Daily Mail.
But the Jensens are not stupid. Their position is extreme, but their understanding of the history and theology of marriage is sophisticated, more so than their critics recognize. How many of their sceptical readers understood their reference to Hardwicke’s Marriage Act of 1753? The Jensens are intellectually consistent to a fault. In fact, they are uniquely consistent among religious opponents of gay marriage. They take the religious argument against same-sex marriage to its logical (and absurd) conclusion.
The religious argument against gay marriage is worth taking seriously. Few advocates of gay rights do so. We know that we rationalize our prejudices. Theological arguments against same-sex marriage seem obscure and convoluted to non-specialists. It is therefore easy to dismiss them as disingenuous efforts to make pre-existing homophobia intellectually respectable. I suspect that this is precisely the case among many people who claim to oppose gay marriage for religious reasons. But there is also a theology at play here, and when religious people feel that that theological concerns are not understood, or even listened to, they might well conclude that they are being persecuted by secular liberalism.
Marriage – and (perhaps) heterosexual marriage – is important to Christianity. It is not simply a case of following Old Testament laws to the letter and without question. Marriage is important theologically. Jesus Christ is joined to the body of believers in a perfect union. That union is marriage. It is generative: it bears forth certain fruits. Human marriage imitates the marriage of Christ and the church. Some theologians insist that for this mechanism to work, marriage must be heterogeneous and it must be reproductive. Are they right? As a non-Christian, I don’t know and I don’t especially care. I am inclined to be sceptical about any religion that is unable to accommodate homosexual love, but I don’t see the question as any of my business.
According to Nick and Sarah Jensen, the state should not determine the meaning of marriage. If marriage is “sacred institution, ordained by God”, they write, it should not be defined by secular authorities or secular considerations. As they regretfully point out, the state has been increasingly intruding on this territory for several hundred years.
The Jensens identify a turning point for marriage in the British Empire with the passage of Lord Hardwicke’s Marriage Act in 1753. Common law marriages had traditionally been solemnized by local communities by a simple process of affirmation before witnesses. Following Hardwicke’s Act, marriage would now require authorization by the Church of England.
Officially titled An Act for the Better Preventing of Clandestine Marriages, the law was justified by a paternalistic concern for the vulnerability of women in common law marriages. In fact, the authors of the Act were just as concerned with protecting the marriage market for the male propertied elite. Common law marriages threatened patriarchal authority. An advantageous match between aristocratic families could easily be ruined by individual desire. Women only had to produce witnesses to a pre-existing common law marriage to defeat the designs of patriarchal marriage brokers.
The effect of Hardwicke’s Act, beyond securing the aristocratic marriage market, was to increase the state’s control of marriage, via the Church of England, the official state church. Thanks to the Act, dissenters from the Church of England (including the Baptists, the Jensens’ denomination) lost the right to get legally married in their own chapels and by their own ministers. They protested Hardwicke’s Act as an infringement on the civil rights, and won redress in 1836, when a new Marriage Act allowed dissenters to register their marriages directly with the state. The new law restored the civil rights of denominations such as the Baptists, but – ironically – further expanded the state’s control of marriage by introducing the concept of civil marriage. Dissenters such as the Baptists could now celebrate their own marriages and then register them with the state as a civil marriage.
Hardwicke’s Marriage Act is little-known except among specialists in eighteenth-century British religious history, but the Jensens’ interpretation of the Act and its consequences is entirely correct. We see control of marriage passing from the hands of the church into the hands of the state. For the Jensens, this is the crux of the issue: who has the authority to say what marriage is? Same-sex marriage, for them, is not in itself the problem. Rather, it represents the escalation of a problem which has existed for over two-and-a-half centuries, and which has now reached a point which the Jensens find intolerable.
The Jensens distinguish between their civil marriage and their Christian one. If we get divorced, Nick explains, “we’ll… continue to refer to each other as ‘husband’ and ‘wife’ and consider ourselves married by the Church and before God.” Although this part of their announcement has been widely misunderstood, the Jensens are not proposing to separate. Rather, they are recognizing that what the state calls marriage and what they call marriage are not necessarily the same thing, even if the two might sometimes coincide.
But the Jensens’ argument works the other way. What the state calls marriage need not be the same thing as what the church calls marriage. Civil marriage plays a host of civic, social, and legal functions; it can exist on its own without impinging on the theological mechanism discussed above: the union of Christ and the church. In fact, it already does. Marriage is not an exclusively Christian institution. For better or for worse, it has long since ceased to be so in Australia. That ship sailed in 1753.
Peter William Walker 