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October 6, 2018The phrase "the law is an ass" was popularized by Charles Dickens' novel Oliver Twist, when the character Mr. Bumble had just been accused of something his wife, a domineering harridan, in fact did. He argued that he was not responsible for his wife’s actions. Mr. Bumble is informed by the court that "the law supposes that your wife acts under your direction" and he emotionally responds, "if the law supposes that ... the law is an ass—an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience." Jesus would open our eyes to the experience of God’s grace in marriage.
The Law of Coverture
The idea of responsibility of the husband for the wife is enshrined in the English and American common law tradition of coverture. Although largely eroded now, that legal principle is behind the marriage tradition of giving the bride away. Giving away the bride is based on an antiquated legal fiction from the days when women were their father's property until they got married. Then they became their husband's property when the bride was literally given away in exchange for a bride price or dowry. Today, a daughter wants to be walked down the aisle by her father because she honors the loving role that her dad occupied in her life, not because she is his property. It is an emotional experience for both father and daughter. Yet, the idea of the wife as a chattel or property has ancient roots. (The alert reader may be aware that Arizona and other jurisdictions formerly within the Empire of Spain are community property states, not coverture jurisdictions; a different kettle of fish.)
Coverture under English-American common law was rooted in the idea that a wife and children were the property of the husband. When we hear “traditional American family values” we remember the husband’s ‘sacred moral obligation’ to support his wife and child. That is an important moral obligation. It was, however, used as the justification for the unequal status of male and female before the law. Women couldn’t vote, enter a contract, conduct a business or sell her property without her husband’s consent. Justice Hugo Black, in the SCOTUS decision U.S. vs. Yazell, wrote, "This rule [coverture] has worked out in reality to mean that though the husband and wife are one, the one is the husband." I remember that Mr. Bilby, by then in his nineties, asked a new hire, a terrific attorney by any standard, whether her husband knew that she was working. I think he was kidding.
Jesus and the law: Wife as property
The reason I have explained coverture to you is that you cannot understand today’s gospel unless you see that it is a legal question. Rabbis, like Jesus, are expected to answer questions of law. The question isn’t about marriage as we think about it as a sacrament, but it is about a husband’s duty to his property, namely his wife.The Pharisees told Jesus that Moses, Israel’s lawgiver, had allowed divorce. Jesus responded prophetically, speaking for what God intended:
"Because of the hardness of your hearts he (Moses) wrote you this commandment. But from the beginning of creation, God made them male and female. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. So they are no longer two but one flesh. Therefore, what God has joined together, no human being must separate." Mk. 10:2-12.
Theology of the Body: Original Solitude and Original Unity[1]
Man, male and female, look at themselves and say at last “bone of my bone and flesh of my flesh.” St. John Paul calls this ‘original unity.’ Jesus refers to our capacity for unity, “what God has joined together, no human being must separate.”[2]) Male and female can only exist in relationship to one another.
St. John Paul, based on the first reading for today from Genesis 2, explained that before male and female existed the human was alone. It was not humanity as we think about us, but a way of being, absent gender differences. St. John Paul called that state man’s ‘original solitude.’ Nothing else God made could be a true companion to a human, because nothing else was like a human.The Pharisees’ Question: Law and Property
What is underlying the Pharisees question is the mentality that lurks just under the surface, human sin, treating people as a thing. We are capable of love, but often in a distorted way. Seeing others only in terms of their usefulness for our goal is a distortion of love. The Pharisees didn’t ask whether man and woman could divorce each other, but whether man could rid himself of the responsibility for the woman he had married when she was no longer useful to him. Jesus’ disciple had great trouble with his teaching because it threw their understanding of marriage on its ear. First, Moses' law was moved aside and then, well, this saying is just plain hard.
That attitude continued in the early Church. A good example is St. Paul in Ephesians 5:21,
“Be subordinate to one another out of reverence for Christ. Wives should be subordinate to their husbands as to the Lord.”
St. Paul continues,
“For this reason a man shall leave his father and his mother and be joined to his wife and the two shall become one flesh. This is a great mystery, but I speak in reference to Christ and the church. In any case, each one of you should love his wife as himself and the wife should respect her husband.” Eph. 5:31-32.
Why does he say it’s a mystery? Because it is not the way the world works; it is, however, what Jesus taught.
Mysterion and Marriage
The word St. Paul used that we translate as ‘mystery’ was the Greek word ‘mysterion’ which the Latins translated as ‘sacramentum.’ Mysterion is how St. Paul describes the relationship of Christ to his Church and husband to wife. This mystery is the basis of marriage as a sacrament that cannot be ended. The law of Moses as well as English and American law have always seen marriage from the perspective of property ownership in one form or another. ‘No fault divorce’ as adopted in America was the surrender of secular culture to human pragmatics. According to the SCOTUS marriage is merely a contract which any two people of whatever gender can enter into.
Christ’s teaching about marriage, quite to the contrary, is not concerned with property and control, but with the well-being of man and woman. Jesus said that from the beginning man and woman were made from one flesh and were intended to be one flesh that no power could separate.- Marriage and Divorce: Sometimes, the bride and the groom ask whether they will be signing the state wedding license on the altar during the wedding. I explain that what God and the Church intend by marriage is not contained within state law of marriage. God cares about his creation in a way the state is incapable of, because God wants to make you a saint through your marriage.
- Nullity of Marriage: The Church is concerned with whether you are capable of marriage. Can you make an intentional, knowing and voluntary consent to an exclusive, faithful and permanent way of life? Can you live that way of life for the good of your spouse and children? Can you receive the love of another person? Can your intended spouse do the same? If the reality of your personal development is, you can’t, you cannot be validly married in the eyes of God and the Church. Marriage requires a fully human act.
- Marriage as sacrament: Marriage is a sacrament, a visible sign of an unseen reality. I explain to couples getting married or seeking an annulment, that what Christ and his Church intend for marriage is very different from the expectations of the courthouse, Pima County or the State of Arizona. Marriage is a visible sign of God’s original creative intent for man and woman. That mysterion was to make visible the union of Christ and his Church. Each marriage is a mystery, a sacrament, a sign of God’s loving intent for his Creation. Christ directs us beyond the confines of human culture or our own pragmatic expectations to God the Creator.
Law and culture may only dimly reflect the intent and impetus of nature. Our Lord might well have agreed with poor Mr. Bumble, “the law is an ass.” The sacrament is the experience of God’s grace – as Mr. Bumble said, “… I wish the law’s eye may be opened by experience—by experience.” I would say, the experience of Grace.
[1] “The problem of solitude arises only in the second creation story. The first account doesn’t mention a time when man was alone. There, we read only that God created man in his own image, “male and female he created them” (Gen. 1:27). In the second account, the problem of man’s solitude is raised before his division into male and female.” Paul II, Pope John. Theology of the Body in Simple Language (pp. 9-10). Philokalia Books. Kindle Edition.
[2] “In preparation for his creative act, God immerses man in sleep—this should give us food for thought. The Hebrew word that the Bible uses for Adam’s sleep—tardemah—signifies a deep sleep that comes before some extraordinary event. Here, man falls into sleep in order to find a being like himself. He wakes up “male” and “female.” In Genesis 2:23, “She shall be called ‘woman’ for she was taken out of man,” we find the distinction between male and female for the first time. Femininity is found in relation to masculinity, and masculinity is confirmed by femininity. They depend on each other. Eve is made from the “rib” that God took from Adam’s side. This signifies that the male and female bodies share the same physical structure—they are of the same species. It is interesting to note that the ancient Sumerians used the same written sign for “rib” as they used for “life.” Adam and Eve share a common source of life—God’s breath. The male and female bodies, though different, share the same humanity. When God brings the woman to Adam, he cries out, “This is now bone of my bones and flesh of my flesh” (Gen. 2:23). He immediately recognizes her body as a human body, even though she is of a different sex. In the Bible, the word “bones” expresses a very important aspect of the person. Since the Jews made no distinction between body and soul, the “bones” referred to the very core of one’s being.” Paul II, Pope John. Theology of the Body in Simple Language (pp. 17-18). Philokalia Books. Kindle Edition.
