Written by: Mr. Mark McCall
Tuesday, November 25th, 2014
My ACI colleagues Ephraim Radner and Christopher Seitz have recently published a “Marriage Pledge” in the journal First Things in which they undertake to refrain from serving as agents of the state in marriage by, e.g., signing government-provided marriage certificates. Couples will be asked to contract civil marriage separately from “weddings that seek to establish a Christian marriage in accord with the principles articulated and lived out from the beginning of the Church’s life.” Their reasoning is that as civil marriage has been progressively redefined it no longer coincides with the Christian understanding of marriage: “to continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage.”
Courts also struggle with the confusion arising from different understandings of marriage. Consider the following cases that courts in my home state of New York have wrestled with in recent years:
- As framed by the court: “One of the intriguing questions raised by this divorce is whether the Legislature, when it enacted DRL sec. 25 more than one hundred years ago, could have ever conceived of, let alone intended for, the statute being used to validate a license-less marriage supposedly solemnized in what can only be described as a “pseudo-Jewish” wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet solely for the purpose of performing weddings for friends and relatives.”
- A male Orthodox Jew and a female Muslim go to the second largest mosque in New York City where, without a marriage license, he converts to Islam and they have an Islamic marriage ceremony performed by an imam. The man subsequently resumes the practice of Judaism and later advises a New York court that they were not “legally” married. He refers to her as his “ex-girl friend.”
- A Muslim couple living in Brooklyn marries in an Islamic ceremony performed by a New York imam at the bride’s brother’s house in New Jersey without a license from either state. They return to Brooklyn for their reception and live there as husband and wife until his death. There clearly is no valid civil marriage under New Jersey law. What about New York?
- A co-habiting Jewish couple has a Jewish marriage ceremony. The man testifies that there was no intent to be civilly married and that the religious ceremony was for the sole purpose of deflecting criticism of their co-habitation. The woman disputes this statement of intent. The court does not consider nor does the record reflect whether there was a valid civil marriage license. The issue before the court is whether it must consider Jewish doctrine to resolve the issue of intent.
- Without obtaining any marriage license, a lesbian couple from New York has a Buddhist marriage ceremony in New Mexico prior to the time New Mexico permitted same sex marriage. Later and while still living in New York, they doubt the validity of the New Mexico marriage and enter into a Vermont civil union.
Can any of these be valid civil marriages in New York? The courts’ answers: no; yes; yes; yes; no (New Mexico)/yes (Vermont).
Many of the responses to the Marriage Pledge from both sides of the divide on same sex marriage have reflected substantial confusion over the distinction between Christian and civil marriage and what the role of the clergy is in the marriage ceremony. My purpose here is to clarify that distinction and then to evaluate criticisms of the Pledge in light of this discussion.
My consideration of civil marriage is based on the law of New York where I live and practiced law, but it is obvious to all that the regulatory framework for civil marriage varies from state to state. In one respect discussed below, the law of New York is different from most other states.
The first section of the article on marriage in New York’s consolidated laws defines civil marriage as “a civil contract, to which the consent of parties capable in law of making a contract is essential.” Like any other contract, the marriage contract requires consent. Most contracts are formed and have legal force upon the manifestation of that consent—offer and acceptance—without the need for any special formalities. Some contracts, however, do require special formalities before they have legal force, e.g., they must be in writing or recorded at the courthouse. As everyone knows, a contract to convey real estate must be in writing and the conveyance itself must be filed and recorded at the courthouse.
A civil marriage contract is one that has its own special formalities. First, the parties must obtain a marriage license, which in New York is valid for 60 days (after a 24 hour waiting period). Second, the contract must be “solemnized” in statutorily-defined ways. Third, the details of the solemnization must be recorded on the license, which is returned to the county clerk. Finally, the clerk sends the married couple a “certificate of marriage” as proof of the legal validity of the civil marriage contract.
One of the defined ways in which a marriage contract can be solemnized in New York is by “written contract” witnessed and acknowledged before a judge “in the manner required for the acknowledgment of a conveyance of real estate.” Since the statue requires no particular form of words, I suggest the following language would meet the legal requirements in New York:
Whereas, a civil marriage contract is defined in Article 3 of New York’s Domestic Relations Law; and whereas, such contract can be terminated at any time by either party pursuant to the procedures specified in the Law of the State of New York,
Therefore, the undersigned hereby agree to form such a marriage contract and to take each other as “husband and wife” (as those terms are construed in a gender-neutral manner as specified in DRL Sec. 10-a) with all the rights and liabilities as may be defined from time to time by the law of the State of New York.
Some may quibble that this formulation lacks the elegance and beauty of the Book of Common Prayer, but that book is not a legal formbook for civil transactions analogous to real estate conveyances. Lawyers seek precision, not poetry. And this is a very clear-eyed and precise statement of the nature of the civil marriage contract formed under New York law.
However: a written contract acknowledged in the manner of a real estate transaction is not the only way in which a marriage contract can be solemnized in New York. The contract can also be solemnized orally before a civic authority, such as a judge, mayor, clerk or marriage officer, or before a clergyman “of any religion.” (In the past New York has not recognized contracts solemnized before internet-ordained Universal Life Church “ministers” on the grounds that this organization had no place of worship within the state, but this ruling is currently “under review” due to the large number of New York weddings officiated by such ministers.)
The New York statute is clear that “no particular form or ceremony is required” when the contract is solemnized orally, but “the parties” must “solemnly declare” that they “take each other as husband and wife,” such terms to be “construed in a gender-neutral manner.” Thus one form of words that can be used to satisfy the requirements of the statute is the following:
In the Name of God, I, N., take you, N., to be my wife, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, until we are parted by death. This is my solemn vow.
But we must be clear: to the State of New York those words mean exactly the same as, and no more than, the words of the proposed written contract I suggested above. Is it any surprise that Radner and Seitz would want to disentangle these words from the interpretation given to them by the civil law in New York?
Christian marriage is defined in the opening rubric for the marriage service in the Book of Common Prayer: “Christian marriage is a solemn and public covenant between a man and a woman in the presence of God.” The opening words of the rite then describe the result of this covenant as “the union of husband and wife in heart, body, and mind.” Canon I.18.2 of the General Canons of The Episcopal Church elaborates this definition: “Holy Matrimony is a physical and spiritual union of a man and a woman, entered into within the community of faith, by mutual consent of heart, mind, and will, and with intent that it be lifelong.” The climax of the matrimony rite in the Book of Common Prayer, the pronouncement of marriage, indicates using the words of Jesus that God is the creator of this union: “Those whom God has joined together let no one put asunder.” The current rite is based on and substantially similar to that found in the first TEC Book of Common Prayer in 1789.
In the western tradition, the bride and groom are the ministers through which in the exchange of their vows the marital union is created by God. In the eastern tradition, the priest is the minister, but the effect is the same: upon the covenant of the bride and groom, God creates through His ministers a lifelong marital union.
It is important to emphasize that the rubrics and canonical language quoted above are from the current Book of Common Prayer and canons; they are not outdated traditional formulae now superseded.
The differences between Christian and civil marriage in New York (and note once again that the nature and terms of civil marriage vary from state to state) could hardly be more stark. Christian marriage is a lifelong union created by God between a man and a woman; New York civil marriage is a terminable contract between any two eligible people—no bigamy or incest—with terms specified and amended from time to time by the legislature and courts of the state of New York.
Practical Implementation of the Marriage Pledge
The purpose of the Marriage Pledge is to keep these radically different concepts of marriage distinct so that no one, whether inside or outside the church, thinks they are the same. How might the Pledge work in practice?
The primary rite used for Christian marriage in The Episcopal Church makes no reference to civil marriage or even to the civil law. In two places at the outset of the ceremony, the priest establishes that the couple can be “lawfully” married, but the law being referenced there is God’s law, not the civil law. This point has been obscured in the 1979 Book of Common Prayer, but it is explicit in the immediate antecedent to this language in the 1928 edition in a provision virtually unchanged since 1789:
I REQUIRE and charge you both, as ye will answer at the dreadful day of judgment when the secrets of all hearts shall be disclosed, that if either of you know any impediment, why ye may not be lawfully joined together in Matrimony, ye do now confess it. For be ye well assured, that if any persons are joined together otherwise than as God’s Word doth allow, their marriage is not lawful.
Both the rubrics and Canon I.18 require that the marriage conform to the laws of the state, but since states require neither that any religious ceremony be used for civil marriages nor that religious marriages be accompanied by a civil contract, this requirement of conformity to state law has no effect on the rite to be used or the understanding of marriage created through this rite. One interpretation of this canonical language might be that it requires that the couple also enter into a valid civil marriage contract, but the language itself does not say that. A better interpretation is that this language prohibits marriages that would be “void” or prohibited under state law: bigamous or incestuous relationships. This understanding is supported by the language in the canon requiring “that both parties have the right to contract a marriage according to the laws of the State.” The only restrictions on the “right” to contract a marriage in New York are those related to bigamy and incest. There is certainly nothing in either the rubrics or the canons that requires that the rite of matrimony be used in any fashion as part of the civil contract process.
Given these considerations, any of the following options would be available to the couple and priest subscribing to the Marriage Pledge:
- The couple first contracts a civil marriage either by a written contract or oral recitations at the courthouse followed at a convenient time by entering into a Christian marriage using any of the three matrimonial rites specified in the Book of Common Prayer: “The Celebration and Blessing of a Marriage”; “The Blessing of a Civil Marriage”; or “An Order of Marriage.” All are consistent with the prior creation of a civil marriage contract.
- The couple first enters into Christian marriage by means of either the first or third of the matrimonial rites followed in due course by contracting a civil marriage at the courthouse. The rite for “Blessing of a Civil Marriage” would not be appropriate for obvious reasons, but neither of the other two prohibits a subsequent civil contract. The rubrics for both require compliance with the civil law, but the civil law does not require a simultaneous—or even any—religious ceremony.
- The couple could enter into a Christian marriage without entering into a civil contract at all. As noted earlier, one interpretation of the rubric and canonical requirement of compliance with civil law is that a civil contract is necessary, but civil law does not require that all religious marriages also be civil ones. Thus, the most likely effect of this provision is to prohibit bigamous and incestuous marriages.
In New York, the first of these options would be the preferred one since New York has an incoherent law on the necessity of marriage licenses: one statute states that “it shall be necessary for all persons intended to be married in New York state to obtain a marriage license” while another reads “nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between [eligible] persons.” A recent court decision characterized this latter provision as
an obscure, arcane provision, one that is likely little known to judges, lawyers and legislators alike. And it would undoubtedly come as a surprise to all those couples who patiently wait on the long lines at the Marriage License Bureau at the Office of the City Clerk in lower Manhattan to learn that, despite the instructions they were given, a marriage license is not really a requirement for marrying after all. Ponorovskaya v. Secklow, 2014 NY Slip Op 24140 (Sup. Ct., New York County, May 29, 2014).
Under this “archaic statute” New York probably would recognize the formation of a valid civil marriage from the exchange of vows during the matrimonial rite in the Book of Common Prayer, regardless of the intent of the couple and priest or the absence of a marriage license. The Ponorovskaya court invited the legislature to repeal this “forgotten relic from an earlier time” noting that its original purpose was to protect religious marriage from government intrusion:
the Legislature enacted DRL sec. 25 at a time when traditional religious practices continued to hold sway and governmental regulation of marriage was still relatively new. Consequently, the statute was likely meant to protect the old ways by insuring that the validity of a proper religious marriage would not be jeopardized by the failure to obtain a marriage license, a requirement that in 1907 must still have struck many legislators as a mere legal technicality….
Whereas in 1907 a wedding in a church or a synagogue, with the attendant formality, recognition in the community and ecclesiastical record-keeping, was the norm, it is now on its way to being the exception. Thus, the basic rationale for the existence of DRL sec. 25 — the need to protect the sanctity of traditional, formal religious marriages from the threat of government imposed legal requirements — is no longer relevant.
The last sentence is a rather chilling reminder of why the principle in the Marriage Pledge is so important: “the need to protect the sanctity of traditional, formal religious marriages from the threat of government imposed legal requirements is no longer relevant.”
Objections to the Marriage Pledge
It is in light of the above what to make of the objections made thus far to the Pledge?
What would we be doing in the rite of matrimony if not solemnizing civil marriage? Something new?
Not at all. The couples married in a Christian marriage would be doing what they have always been doing since the earliest days of the church—and doing in the Episcopal Church since the publication of the 1789 Book of Common Prayer: entering into the “holy estate” of matrimony, the physical and spiritual union created by God upon the making of a public covenant by the bride and groom through their vows. In contrast, as the Ponorovskaya court noted, marriage licenses are “a relatively recent innovation, with statewide registration of marriages not having begun until 1881 at the earliest.”
Clergy taking the Marriage Pledge are leaving the distasteful actions to the couple rather than doing that work themselves and getting their hands dirty.
Hardly. Nothing in either the Pledge or the light of reason suggests there is anything “dirty” about civil marriage. It provides tax benefits to many couples and opens up useful strategies for maximizing Social Security benefits. It is often necessary in private commerce for securing benefits such as health insurance. The fact that non-believers, adherents of other religions and those not eligible for Christian marriage enter these civil contracts as well has no moral significance. They also obtain passports and drivers’ licenses, both of which can be useful to Christians as well. Civil marriage is not distasteful; it can be good. But it is not Christian marriage—although many (including some of the objectors) confuse the two. Hence the need for the Pledge.
This means abandoning the fight for traditional civil marriage in the public square.
Not at all. The fight for traditional civil marriage is based on natural law and the protection and flourishing of society. It cannot be based on an identification or conflation of Christian and civil marriage for they are not and never have been the same thing. The fight to preserve civil marriage, however, is not the same as the fight to protect and strengthen Christian marriage. As public surveys, divorce rates and even the responses to the Marriage Pledge demonstrate, too many people both inside and outside the church equate Christian marriage with whatever the state authorities determine civil marriage to be at any given time. The Marriage Pledge is one effort to change that misconception.
November 25 2014 | Articles