Courts often don’t get sex. We know that. But I had thought that this was a peculiarly American matter. Not so, apparently. British newspapers are reporting that Italy’s Supreme Court of Cassation, its highest court for nonconstitutional issues, has civilly blessed an ecclesiastical court’s annulment of a marriage. That, by itself, will strike an American as odd. But there’s no reason why the contours of other countries’ disestablishmentarian principles, if any, should match ours, even when we’re talking Europe.
What’s really interesting is the reason the civil court affirmed the annulment. Before getting married the wife discussed with her future husband the idea of open marriage. As The Guardian reports, “the woman had ‘theorized’ that marriage did not have to be based on sexual fidelity, but had never put the idea into practice.” The Supreme Court of Cassation put the point more directly: “there was no evidence of the woman frequenting other men.” Perhaps the finding sounds less coarse in the original Italian. (I’ve been unable to lay my hands on the original opinion of either the religious or civil court. If anyone has links to them in Italian or English, please send them on.)
The Court of Cassation’s holding has a serious and surprising consequence. The wife’s “theorizing” bars her from alimony. No penny for those thoughts! What’s going on here? I’m really curious. Is the denial of alimony only a logical “follow-on” to the marriage having been void ab initio under canons 1095-1107 of the Code of Canon Law? If so, what was the initial impediment? That “theorizing” sleeping with someone other than your spouse means one doesn’t have the maturity to marry? That it means one doesn’t know what marriage is? That the husband couldn’t have meaningfully consented to marry someone who viewed marriage in less than traditional terms? Or does the result reflect a deeper sense of biblical identity: “For as he thinketh in his heart, so is he” (Proverbs 26:7)?
Presumably the courts wouldn’t take the same position on “theorizing” after marriage. After all, the biblical insight “that whosover looketh on a woman to lust after her hath committed adultery with her already in his heart” (KJV Matthew 5:28) would threaten to unwind nearly every marriage—or perhaps that’s just me.
I have to admit that I suspect there’s something else going on here. This is, after all, the same court that reversed only two years ago a holding that as a matter of law a woman wearing tight jeans couldn’t be raped and accommodated legal principle to Italian sexual culture by ruling that a mistress may lie under oath to protect her reputation without committing perjury. But I guess we do this sort of thing too. The second holding sounds a little like a recent American impeachment controversy. When it comes to sex, all bets are off.
It’s always hard to project oneself into a different culture and speculate but I can’t help wondering if the result would have been the same if the husband had been the one “theorizing.” Or is this just an Italian effort to protect expressively the sanctity of marriage without addressing the phenomenon of adultery on the ground? If so, it’s a little like our own current battles over same-sex marriage.
I admit I have no answers here—only questions. Any ideas?