Some law students at Regent Law were recently discussing whether marriage is a covenant or a contract. The answers were a bit humorous and ranged from taxes to house work:
“I don’t think it’s either really. It’s just a piece of paper that doesn’t matter. Only helps for tax reasons lol”
“It depends on what perspective is being looked at. If it’s for religious reasons it’s a covenant, if it’s the law, it is a contract.”
“To me both are the same thing. Just using different words. They both are an agreement to stay with that person.”
“… from Regent's perspective it is a covenant.”
“Well simply stated a contract can be broken and covenant (looking in the root of the word which is a will ) is till death.”
“Contract...is a legal obligation between two people...covenant is a religious contract between deity and follower.”
“There should be a contract saying if both bring money home both have to do house chores as well - women are not maids or slaves - that be my contract lol.”
So as Christian law students, how should we think about this? At Regent Law, we begin most discussions by considering the Bible, and working to gain a biblical understanding of legal principles. So let’s try that first….
The foundation (and the collapse) for marriage are laid out in the first three chapters of Genesis. Here, the “covenant of marriage was grounded in the order of creation and governed by the law of God,” John Witte, Jr., From Sacrament to Contract: Marriage, Religions and Law in the Western Tradition 7 (1997), and then alienated by both woman and man in the fall. God explicitly defines a covenant throughout the Old Testament with Abraham, with Noah, and with David, as a vertical promise between God and man that endures to death. John Calvin used the doctrine of covenant to explain not only the vertical relationship between God and man but also the horizontal relationship between husband and wife. He argued that just as God draws the believer into a covenant relationship with him, so God draws a husband and a wife into a covenant relationship with each other, and with Him. So marriage is a covenant promise made in the presence of God and a community supporting the couple in that promise.
So now let’s consider the law on marriage…
We begin by looking to the United States Supreme Court which has declared marriage to be “intimate to the point of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 485 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” This language has been subsequently quoted in five additional Supreme Court opinions:
Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 843-44 (1977); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 70, n.10 (1976); Roe v. Wade, 410 U.S. 179, 210 (1973) (mem.) (Douglas, J., concurring); and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 324 (1967) (Douglas, J., dissenting). Therefore, religious views are also appropriate for advocates and judges to consider.
A contract, as these law students worked to allude to, is the bargained for exchange between two capacitated parties. The law will enforce agreements imposing obligations on people who enter into them. This contact law became part of social philosophy when social contract political theory took root during the Enlightenment, and so did the idea that marriage is a personal contract, subject to the preferences of the parties and their personal rights. Therefore, the law will enforce contracts between consenting adults who marry, and will view the marriage as a contract and a status. This approach has grown to dominate thinking on family and marriage law today, as marital contracts, marital property and marital support are based in biblical foundations stemming from the oneness concept of marriage as a partnership, and will be enforced by the law.
Therefore, these historical threads of covenant and contract serve to demonstrate the deep theological roots of marriage law and confirm that, despite the relationships between people of faith and the state, theology and civil law, marriage as the foundation of society is a concept – and a reality --- that precedes both church and state, and is both a covenant and a contract.
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