Marriage (Part 1): Authority, Legitimacy and the State

January 10, 2008 § 2 Comments

 

The issue of marriage is always a good topic to write about, because it essentially effects everyone. Every human being in one way or another has a relationship to marriage and can relate and express a view on marriage even if their understanding is limited to the confines of intellectual pondering or flighty fantasies of Hollywood romance. Therefore, I intend to devote a series of blog posts to the topic of marriage and perhaps contribute a worthwhile effort on this noble and weighty subject. I have indulged a great deal of experimentation, research, evaluation and my own personal trials concerning marriage prior to writing on the subject yet nothing has been of more benefit and guidance concerning marriage than the traditions and teachings of the Prophet, Maulana Muhammad (may Peace and Blessings be upon him).

Indeed, it was after receiving these wisdoms within a real world environment that woke me to certain realities of marriage. This awakening beckoned me to ask the question, “What is the purpose of marriage?” This question led to a series of fundamental questions that would later lead to a more purposeful understanding of marriage particularly with respect to its merits and disadvantages within our present day American society. But before we discuss the merits and disadvantages of marriage within our American society. We must first understand what marriage means by definition, according to our modern American reasonings.

Marriage according to the American Heritage (R) dictionary refers first and foremost to the legal union of a man and a woman as husband and wife. [1] Which implies that there is an authorized and recognized manner of establishing a social union between men and women. Which also implies the opposite, that there is an unrecognized manner of social union between men and women. And I do understand that from a macro survey of marriage in general there are controversial discussions ongoing concerning the recognition of same sex-marriage, however this is beyond the scope of this article. This article will focus on the recognized manner of marriage between men and women and the subsequent discussion should continue in this fashion.

It should be interesting to note that the above paragraph discusses the recognition of marriage establishing legitimacy. But what is more interesting is that legitimation is the act of establishing norms, values and reasonings of society. This act is a function of the ruling authority, those with power and influence over society and the right, by virtue of their authority, to exercise control over the norms, values and reasonings of a given society.

Therefore, in our present day American society, it seems that the US Government ultimately has the ruling authority over the norms, values and reasonings of society, according to the logic that we’ve established above. And within the governmental body it is the State that administrates authority over the general customs, practices and behaviors that are deemed legitimate in marriage. Which offers an interesting proposition concerning the merits and disadvantages of marriage: what does the State have to say about it?

In 1902 the state of New York abolished the “common-law marriage”, a marriage provable by cohabitation and reputation. At that time the State of New York affirmed that the legitimacy of marriage is based on the solemnization of marriage by a clergyman or a magistrate duly authorized and a contract of marriage as evidence, this is called “civil marriage”. The State of New York ordered,

“No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of the clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” [2]

This legal edict states that the State of New York requires one of two officiates to conduct a legitimate marriage. The first being a clergyman and the second a magistrate or in other words the State of New York recognizes both religious and state authority to establish the legitimacy of marriage within New York State. It is my guess that this is true for all fifty states but perhaps there are exceptions. And since we have established what makes a marriage legitimate, perhaps we should examine what makes a marriage illegitimate and void, according to New York State law. According to Domestic Relations Law (L. 1896m ch. 272),

“A marriage is incestuous and void whether the relatives are legitimate or illegitimate between, either; an ancestor and a descendant, or a brother and sister of either the whole or the half blood or an uncle and niece or an aunt and nephew.”

These laws reflect what God Almighty says in the Qur’an,

“Forbidden unto you are your mothers, and your daughters, and your sisters, and your father’s sisters, and your mother’s sisters, and your brother’s daughters and your sister’s daughters, and your foster-mothers, and your foster-sisters, and your mothers-in-law, and your step-daughters who are under your protection (born) of your women unto whom ye have gone in – but if ye have not gone in unto them, then it is no sin for you (to marry their daughters) – and the wives of your sons who (spring) from your own loins. And (it is forbidden unto you) that ye should have two sisters together, except what hath already happened (of that nature) in the past. Lo! Allah is ever Forgiving, Merciful.” [3]

The above however, does not consider cultural taboos and social stigmas that develop along the global public sphere. Instead, we are looking at the legal aspects of marriage as offered in the statutes of various states within the US in order to determine what we can and cannot do according to the norms, values and reasonings of the established authority. For example, a person’s age, health, fertility and immigration status can also be contributing factors to determine the whether or not persons can pursue a legitimate marriage, that being a marriage recognized by the State, according Cornell Law School’s Legal Information Institute.

In summary, we see that in our present day American Society considers marriage a legal union between a man and a woman as husband and wife. The administration of the marriage by a clergyman or magistrate and a marriage certificate seem to be the most fundamental criteria of legitimacy in the eyes of the State, as long as both parties fall within acceptable age, familial kinship, health, citizenship and in some states fertility. And although this brief discussion identifying the presiding authority over the institution of marriage is helpful, it does not answer the underlying question, “What is the purpose of marriage?”, it merely tells us who and what defines the act of marriage.

In the next installment of this series I would like to look into the custom, practice, relationship, importance and general patterns behavior within marriages of our present day American Society. And while we attempt this lofty goal, looking deeply at the institution of marriage, keep in mind the underlying focus of this series. “What is the purpose of marriage?”

[1] American Heritage Dictionary
[2] Gilbert, F. Bixby. The Law of Domestic Relations of the State of New York, 1902
[3] The Noble Qur’an, “The Women”; 04:023, tran. Pickthal

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§ 2 Responses to Marriage (Part 1): Authority, Legitimacy and the State

  • Aaminah says:

    Asalaamu alaikum.

    Very interesting. I look forward to seeking the direction you go with this.

  • Saifuddin says:

    BismillaharRahmanirRahim

    as-salaamu ‘alaikum. Aaminah, thank you for commenting. I have been contemplating writing a series on this subject for nearly a year but… I didn’t not want to put just anything out there. InshaAllah, this will be of benefit… for myself and others.

    -Saifuddin

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