I am tapping away at two “related” books—a history of the question of abortion (foeticide, in an older language) and infanticide in Jewish, pagan and Christian culture, and a short history of the “sacrament” of marriage in Christianity. I won’t do spoilers here. If you want the straight story, you will have to read the books.

But I think it is fair to say that writing books can be transformative, even if you don’t especially want to be transformed.

I have been a proponent of the “right to choose” since Roe v Wade became the law of the land, in conscience before that.

My mother as a college student remembered helping her room-mate slip out of St Louis to a “doctor” in East Saint Louis, then an Illinois slum of the city, to have her problem “taken care of.” The doctor, a black midwife, was a compassionate but undertrained woman who would not have been able to deal with any complications during or after the surgery; D & C procedures were not done, and often the abortion was simply induced with the patient left to deal with the after-effects.

Like a lot of women of her generation—Catholic women as it happens—she simply assumed that one day common sense would prevail and procedures like the one she facilitated would be done in proper hospitals under sanitary conditions. And like a lot of Catholic women (she remained a Catholic until her dying day) she felt the Church was simply irrelevant to the discussion of contraception and abortion, a brave position towards a Church that had chosen to take its moral stand on gynecological matters under the rubric “the gospel of life.”

Given this preface, even I am surprised at what I have come to think about the topic of abortion as it is now framed.

I do not like the term “abortion rights”—not because I am a man and will never have to choose, but because it is a cynical phrase hewn out of the conflict with equally sinister activists, the “right-to-life”-cadre–who hold that abortion is murder. Not only murder, but murder most foul because it preys on the innocent at the most vulnerable point in their existence.

I think positioning abortion as a right, similar in some sense to the right to free speech, or press and assembly was a flawed response to the invocation (and manipulation) of the Constitutional right to life, which (whatever else Jefferson or Locke may have meant by it) was clearly not envisaged to apply to inviable foetuses.

Writing Faith and Foeticide has convinced me that the discussion of personhood cannot be avoided, and that it is foolish to try to do so. Since ancient times the question of “viability” has been a topic of medical, domestic and theological discussions. That subject in turns hews closely to the questions of “identity” and perhaps more important in the ancient discussion the question of property.

The Jews asserted a parental interest in an unborn child only when quickening occurred, in the fifth or sixth month. For millennia—-long before the technology existed to explore embryonic development in the uterus—it was the voluntary movement of the foetus that established its personality, that is, its distinctive identity as a human being in utero. The property right of a father over an unborn child could only be asserted at this point, as a famous text (Exodus 21.22 ff.) illustrates. In Jewish, pagan and early Christian cultures the wife was the custodian, not the owner, of the property. The penalty for inducing an abortion (miscarriage) by accident or deliberate action was a fine paid to the father.

By the eighteenth century the assumptions of legal sholars like William Blackstone were formed in almost total ignorance of the ancient discussions, which made it possible to write nonsense like this:

Life… begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.

(Blackstone, William (1979) [1765]. “Amendment IX, Document 1”. Commentaries on the Laws of England 5. Chicago: University of Chicago Press. p. 388.)

The ancient debate looks distant and even foolish to us. It was a form of reductivism that understood a child as having value in relation to a certain system that we have come to know as patriarchy. While abortion certainly existed, contraception was not very effective and could be dangerous to the woman. In general, only wealthy women could procure abortions—for unwanted children or to keep a jealous husband, father, or lover in the dark about an inconvenient pregnancy. None were safe; all were potentially fatal.

But the modern debate is just as reductivist: it begins with the (equally proprietary) axiom that the mother in some sense owns not only her body (a good Lockean principle) but what is in it, by chance or design. Given that assumption–that the mother has the power to sustain or extinguish this life– whether we choose to humanize it or not, the only relevant questions are essentially questions of hygiene and safety. In ancient times the discouragement to abortion was that women died, not just from botched surgery but from routine childbirth. This risk having been reduced substantially in the modern world, it becomes necessary to focus on the question of choice and rights, maintaining all the while that the rights that can be extended to the born child cannot be ascribed to the foetus. While the term “unborn” is considered by many pro-choice advocates as prejudicial to discussion, the fact is that intrauterine and post-uterine existence are not ontological statuses but physical realties: the object of this existence needs to be considered, which in the super-charged and historically vacuous climate of contemporary discussion is not possible. The premises are simple on either side: Either abortion is murder or it is not. If is is murder, its advocates are criminals. If it is not, then it is a permissible form of family planning or social hygiene. In choosing sides, the ethical reality of the foetus is exploited but the ontological status of the foetus is almost never considered in a mature and humanistic way.

So entrenched are views on the topic that any suggestion that the life of the foetus is human life immediately drowns the “personhood” question in a barrage of cases about rape and incest, though the majority of unwanted pregnancies (>5% in first trimester) are not the result of rape. The overwhelming majority of first trimester abortions are elective. This statistic in itself is meaningless, however, part from consideration of the ethical reality involved. The unasked question it seems to me is not whether abortion should be legal–of course it should be–but what is being done in the process.

Statistics, however, are routinely used by the most strident of the anti-abortion contingent to bring back the dark night of blanket illegality. And in the offing, the question of life and personhood is reduced to caricature. That, if you ask me, is a shame because it throws a sensitive question to the howling yahoos in American political life like meat to dogs.

The safer and more common abortion has become the more it has become proceduralized. By that I mean the condition of pregnancy has been reduced to the same status as the condition of having a curable disease. The pregnant woman on this analogy can be considered nothing but a person seeking relief from an illness, a frame so constructed as to include the nature of the condition that entails the choice. As there would be no debate for example about the “right” to seek relief from pain or the ravages of a degenerative disease, there should be no debate about the analogous right to seek relief from pregnancy.

The hygienic approach to abortion however raises a range of moral questions that were postulated as long ago as 1970 by George Huntston Williams lamenting the fact that the abortion debate was being resolved not on the basis of historical and humanistic reflection but as an expression of our increasing dependence on clinical solutions to all human problems—the conclusion Williams adds of a “cold and strangely harsh age.” “It is an anomaly of the development of the moral conscience of society at the very moment when we know the most about foetal life and we are, in our reverence for life, reviewing such formerly major instruments of society as capital punishment and war, that many in the name of humanity and humaneness would be disposed to let go centuries of ethical concern about prenatal life.”

Marriage Everyone?

Marriage was not a sacrament in the Roman Catholic Church until the 12th century. The reason was that earlier canons required a sacrament to be a practice started (instituted) by Jesus Christ to impart grace” (“Sacramentum proprie dicitur quod ita signum est gratiae Dei, ei invisibilis gratiae forma, ut ipsius imaginem gerat et causa existat”: Peter Lombard IV Sententiae , d.I, n.2 )–and it is clear that millennia of married people had existed before Jesus.

More embarrassing still, while Jesus responded to some questions about marriage from his opponents, they were not questions about what he “founded” but about a practice already assumed to exist among Jews and gentiles. Indeed they were not even questions about marriage but about divorce (Mt 19.19ff, pars.)

One thing is clear: marriage in itself was not a remarkable thing. Love had nothing to do with it, and insofar as it was a significant social factor it was significant (especially in the upper reaches of society) because it established legitimacy and paternity. Its sole defining function was tied to procreation, legitimacy, and inheritance.

Over the centuries, the Church became more and more involved in the “consecration” of marriage, and more and more specific about the nature of the institution. It derived its divine sanction from two key passages, Genesis 2.23-4. And the pseudo-Paul’s epistle to the Ephesians (5:22-33) where marriage is understood to be symbolic of the bond between Christ and the Church, thus a symbol of salvation itself.

St Paul was downright disparaging about the institution, giving it no more than a pass in his dismissive comment that it “is better to marry than to burn with lust.” (1 Cor. 7.9)

In denying marriage was a sacrament, the Protestant reformers did not challenge its symbolism but its right to be regarded as an institution started by Jesus, maintained by the apostles, and controlled by the church. The early reformers knew very well that marriage became important to the church only because of the question of benefices due the bishops from the landed gentry—the nobility—and that the episcopacy needed to be involved in the question of legitimacy, heirs, and inheritance.

The Church took virtually no interest for another two centuries in marriage practices of ordinary folk, where common law practices provided the social context for a custom that was valued primarily (as also in its religious context) for being a guarantor of legitimate offspring. As Carter Lindbergh has written, Luther, as essentially a late medieval man rather than a renaissance one lived at a time when the Church sanctioned public brothels and approved of prostitution: marriage was not a thing to quell lust but to channel it into procreation. Luther’s basic thesis was that man and woman are God’s work and creatures; God created humankind so that there should be men and women (LW 45:17). Bodiliness and sexuality are God’s gifts which deserve thanks and responsible use. God knows what humankind needs: “It is not good that a person be alone.” (“The Estate of Marriage,” 1522; LW 45:13-49). But whatever else marriage is—-among other things, an institution out of which friendship can grow and even affection–as his own to Katherine von Bora illustrated– it was not a sacrament of the Church and conferred no special “grace” on the partners. It becomes in the language of the Book of Common Prayer a sacred ordinance, blessed by God for the specific purpose of sexual reproduction, the echo of God’s creation. It is not human. It is certainly not about romantic love and care.

One of the difficulties we face with the secularization of any discussion of a religious custom is the question of definition. The incremental importance attached to marriage, as most scholars know, followed the age of courtly romance when marriages involved traditions of ritual flirting, Platonic love, and finally the belief that romantic love and marriage could be conjoined only rarely and with family approval. Alliances between the parties were always taken into account, even among the lower orders of society. Marriage almost always involved some measure of political or financial advantage. The tale of Romeo and Juliet is grounded in a time where the hostility between two families prevented their marriage. The story of Lancelot and Guinevere in Malory’s Le Morte d’Arthur illustrates the price of crossing the line between flirtation, courtly romance, and adultery. Marriage is idealized in countless stories of ”true” (extra-marital) love and betrayal, but what changes fundamentally is the focus of marriage. It is often not a symbol of love but an impediment to love. The sacred union it comes to represent is not human: beyond its prosaic meaning as a symbol of legitimate succession through proving heirs, it is now a symbol of Christ’s “eternal” love for his bride the Church, which in fact is not a signal of love but of subordination and obedience.

What it is not is a symbol of passion or human affection. The high sacramental importance attached to marriage essentially suffocates love in favour of children.

My own view of the history of marriage is that its use over time does not make it a desirable model of “union” for same-sex couples. The historical purpose of marriage has not been to symbolize the love of partners or the equality of partners but the sexual role of partners in a union of biological opposites against the background of natural law. Natural law in turn is the self-determining view that a union which does not naturally residuate in offspring is sterile. In the medieval church, such a marriage could not be validated and if it had been, by accident, could be nullified.

The monopoly of heterosexual couples on this “higher”-than-contractual level is tied to referents that I think homosexual couples would have been better off shunning in favour of civil unions that granted all the rights and privileges under law that “married” couples enjoy: Inheritance, insurance benefits, domicile—the things that were, in fact, always integral to the idea of marriage as a contract. Whatever is superadded to the civil union—the idea of sacramental authenticity, romantic love, child-bearing, the family—has only served to retard and impede same-sex unions within a war of definitions. Same sex-unions should have been based on a rejection of traditional marriage, not the appropriation of the word based on the Ken and Barbie embodiment of the twentieth century.

As with the abortion debate, people have been forced into corners as “for” or “against” gay marriage, whereas, in fact, the ones who should have been redefining the union as a union of likeness have focused almost exclusively on expropriating symbolism that is stubbornly resistant to reinterpretation, the incorporation of same-sex symbolism on the premise that marriage is “really” all about love and the right of two people, whatever their sexual preference, to formalize that love.

When all is said and done, it is the metaphorical significance of marriage that matters, and it is no accident that the definition wars are occurring precisely at a time when religious definitions and metaphorical coherence are at the lowest point in history.

Why not gay marriage? is a question that can only become significant when a symbol has been eviscerated of its traditional power, as marriage itself was during the time of Jesus and Paul against the backdrop of apocalyptic thought. The belief that the world was ending was a clear disincentive to reproduction. Ironically, it is this context that explains why Jesus, called upon to answer questions on the topic, ends up responding to questions about divorce. Contracts without sacramental and metaphorical value are made to be broken. We are not at the same-sex marriage juncture of human history; we are at the end-of-marriage crossroads–not why not gay marriage, but why marriage of any kind?