Abstract

http://ssrn.com/abstract=1140692
 


 



Profane Matrimony


Robert Leckey


McGill University - Faculty of Law


Canadian Journal of Law and Society, Vol. 21, No. 2, pp. 1-23, 2006

Abstract:     
Recent debates over same-sex marriage prompt reflection more generally on the competing norms regulating marriages. Two supremacy claims emerged in the debates, one that religious traditions provide the supreme law of marriage, another that civil marriage is entirely secular and its supreme law is the Canadian Charter of Rights and Freedoms. This paper identifies similarities in these claims. Both wrongly ascribe an internal uniformity to cultural communities. Referring to historical amendments to marriage law, the paper argues that both claims are unfaithful to the Canadian tradition of marriage law. Amendments to the prohibited degrees of relationship and the introduction of federal divorce legislation show the federal Parliament to have developed a civil or profane marriage in conscious opposition to religious forms. Since the 1880s, marriage law has been periodically altered on the basis that it is wrong in a plural, secular society to impose religious views on nonbelievers. Parliament has not simply followed top-down norms, but also regarded social practice as a source of marriage norms. Past instances of law reform indicate a rich political tradition of argument and contestation, one in which the churches have not maintained consistently that the civil law of marriage should mirror religious rules. Civil marriage and religious marriage are not, as claimed by the standard bearers of the Charter, unrelated. They stand instead in a constantly adjusting relationship of tension and difference.

Number of Pages in PDF File: 23

Keywords: marriage, civil marriage, religious marriage, same-sex marriage, gay marriage, Canada, legal culture, history of marriage

JEL Classification: K39

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Date posted: June 6, 2008  

Suggested Citation

Leckey, Robert, Profane Matrimony. Canadian Journal of Law and Society, Vol. 21, No. 2, pp. 1-23, 2006. Available at SSRN: http://ssrn.com/abstract=1140692

Contact Information

Robert Leckey (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)
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