By Mike Appleton, Weekend Contributor
“That no person whatsoever in this Jurisdiction shall joyn any persons together in Marriage but the Magistrate, or such other as the General Court, or Court of Assistants shall authorize in such places where no Magistrate is near.”
-Lauues and Libertyes of Massachusetts (1648) (Legal Classics Library Ed. 1982)
First Things is a highly regarded ecumenical journal on religion and society. Its editor, R.R. Reno, recently posted online a document entitled “The Marriage Pledge.” The pledge is a reaction to the expansion of same-sex marriage recognition across the country, a phenomenon which conflicts “with the Christian understanding of marriage between a man and a woman.” To protest these changes, Christian ministers who sign the pledge agree that they “will no longer serve as agents of the state in marriage” and “will no longer sign government provided marriage certificates.” As of this writing, the pledge has attracted over 400 signatories.
The Marriage Pledge is an unfortunate document, however, and more than a little ironic. It is ineffectual because it presumes a level of importance that the clergy does not have in the formation of lawful marriages, and it abandons religious believers in the process. Those who understand something of the history of marriage will correctly perceive the pledge as a form of witless moral witness.
We have learned from the oldest extant texts that the ancient world regarded marriage as a legal relationship that mixed elements of property, partnership and probate law within a framework of contract principles. Section 128 of the Babylonian Code of Hammurabi was explicit: “If a man has taken a wife and has not executed a marriage-contract, that woman is not a wife.” Remnants of the even earlier Hittite codes note that a man desiring to marry was required to pay a negotiated “bride-price” to the family of the proposed bride, and would receive a dowry from her family once the contract was finalized. A failure by either party to proceed with the marriage entailed the imposition of money damages. Early Roman law contemplated contractual arrangements between the families of the bride and groom. In the later years of the Roman Empire, marriage became more or less a contract terminable at the will of either party. Marriage was seen as a type of merger, and the applicable law concerned itself not with the spiritual commitment of the couple, but with the more mundane but highly important questions of legitimacy and bastardy, descent and inheritance and the preservation of family wealth.
For the early Christians, marriage was a state to be tolerated for those unable to undertake the more virtuous life of celibacy. “Marriage,” wrote Ambrose, “is honorable but celibacy is more honorable; that which is good need not be avoided, but that which is better should be chosen.” Those words were written near the end of the 4th century. A valid marriage required neither a priest nor a ceremony nor witnesses, merely the consent of the parties. It was not until the Council of Verona in 1184 that holy matrimony was given the status of a sacrament by the Catholic Church. And it was not until the Council of Trent almost three hundred years later that the Church abolished so-called “secret marriages” and began to mandate the presence of an officiating priest. This was at least partly a reaction to the Protestant Reformation and Martin Luther’s denial of the sacramental character of marriage.
The increasing formalization of marriage and its control under Roman Catholic and Anglican ecclesiastical law explain the legal treatment of marriage by the Puritans when they founded the Massachusetts Bay Colony. By insisting that the marriage relationship be defined and regulated under civil law, the early colonists were laying the groundwork for the modern notion of separation of church and state. By the early 1800s, Chancellor Kent could write, “No particular ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium , that consent is all that is required by natural or public law. … This is the language equally of the common and canon law, and of common sense.” James Kent, Commentaries on American Law, Vol. II, p. 75 (1827). To this day common law marriage continues to be recognized for all purposes in nine states and the District of Columbia, and for limited purposes in seven additional states.
The principle concern of the law is with the definition and regulation of relationships. The marriage relationship has been governed by variants of contract law since the origins of recorded history. Different religious traditions have imposed their own doctrinal systems on that relationship at different times and in different cultures, but it remains a secular institution under the law and the expansion of that relationship to include same-sex couples is a legitimate exercise of the legislative function. In my view, that expansion is also mandated by the protections afforded to relational interests under the Constitutution.
The presence of a minister or priest at a wedding adds nothing to its legitimacy under the law. Members of the clergy are authorized by statute to preside at weddings, but their function is identical to that of a notary public: to serve as a witness to the exchange of contractual promises, and to file prescribed paperwork with the state. Every religious denomination is free to promulgate its own rules for marriage eligibility. But a refusal to subsequently submit the forms necessary to record those marriages with the proper state officials accomplishes nothing other than to shift the consequences of their “clear action” to the members of their churches.
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In this case, one set of ministers reads the Bible one way and pledges to deny gay marriage, another set of ministers reads it another way and performs gay marriages.
Yes? This is surprising to you? The interpretations are different in the various sects of Christian churches and create the different sects of Christianity. Baptist, Catholic, Protestant and yes….even Lutheran (that’s a running joke). The christian sects all have much in common, but there are also issues of disagreement……that’s why they are not all the same. There are sects that exist in other religions too. Sunni Muslim, Shia Muslim. Jewish sects.
Each sect or church group may have a different spin on things. If a person doesn’t like the teachings in the sect that he is in, he/she is free to change to another religion or sect. The ministers are supposed to adhere to the beliefs of their individual sect and if they don’t like it and unless the entire congregation as a whole decides to also change their views…..the ministers or priests also are free to change to another religion.
It isn’t that there is only ONE Christian way of doing things. Those Christians who support homosexual marriage are certainly free to do so within their own interpretation of the Bible.
It’s interesting that the only “Christian” way of doing things is only their interpretation of Christianity. There are many Christians who support gay marriage.
What this says to me is that a person’s ethics do not derive from god/dess or “sacred” texts but instead appear to come from the person her/himself. In this case, one set of ministers reads the Bible one way and pledges to deny gay marriage, another set of ministers reads it another way and performs gay marriages.
This is similar to other uses of the Bible and beliefs in god. In the hands of slave owners, it justified having slaves. To slaves and abolitionists it was a hearkening to freedom. God/dess is in the person.
Mike A., Nice look at the property basis of marriage in history, and it’s current secular construction in US society.
There aren’t any protestants out there trying to “force” priests to marry them, and I doubt if any gay couples will try it either.
yahbut….you darned well better bake them a cake when they want one 😉
Removing the signing of legal marriage documents from the scope of the religious ceremony should be something that the church and state separatists would welcome.
Go to the government for your legal documents. THEN go to church (or religious edifice of your choice) for a separate religious ceremony. As to the gays not going to be demanding that they be granted a religious ceremony in a religion that view homosexual marriage as being a sin and against their teachings…….wanna bet?
” It is ineffectual because it presumes a level of importance that the clergy does not have in the formation of lawful marriages.”-Appleton
I don’t believe the supporters of the “Marriage Pledge” are under any illusion of advanced importance in the formation of lawful marriages. They fully recognize the government defines what marriage it will recognize under its laws. They simply want to stop “church practices that intertwine government marriage with Christian marriage” because it “will implicate the Church in a false definition of marriage.” They no longer want to participate with the government in marriage even as a “notary public” as you say.
There is a biblical verse (Amos 3:3) that says “How can two walk together unless they are agreed?” They no longer agree and wish to walk separately. I would think this disentanglement would please secularists.
It’s the same old arguments put forth by folks when interracial marriage was the issue. It was immoral; it was against nature; it was being forced on the public and “good christians” against their will; blah blah blah. There aren’t any protestants out there trying to “force” priests to marry them, and I doubt if any gay couples will try it either.
PhillyT wrote: “it was being forced on the public and “good christians” against their will; blah blah blah. There aren’t any protestants out there trying to “force” priests to marry them, and I doubt if any gay couples will try it either.”
I guess you missed this earlier thread:
Same-Sex Marriage Showdown: Idaho Ministers Told To Perform Same-Sex Marriages Or Face Fines
http://jonathanturley.org/2014/10/21/same-sex-marriage-showdown-idaho-ministers-told-to-perform-same-sex-marriages-or-face-fines/
How will the state now handle the marriage of say, Sally and Sue, when Sally marries Bob in North Dakota, a state that does not require Sally to divorce her friend Sue in order to marry Bob when the “Throuple” returns to Alabama
The impetus behind this movement is not positive. It is much more anti-religion than it is pro gay. Comments here and elsewhere are evidence of that.
First of all thank you MIke A for a very interesting and detailed history of “marriage” and “unions”. Lots of valuable history to consider.
I agree with the religious leaders who want to opt out of being involved in the legal, civil, paperwork government part of marriage. They are not government workers, nor do they represent the government. They are religious workers and represent their church or denomination. Keep these things separate and the controversy about gay marriage is lessened.
Members of the clergy are authorized by statute to preside at weddings, but their function is identical to that of a notary public: to serve as a witness to the exchange of contractual promises, and to file prescribed paperwork with the state.
Authorized, but not compelled. Having the priest sign the documents is merely a convenience. If we truly want a separation of church and state then the people getting married should complete their LEGAL paperwork at the court house or go to a Notary Public (I was one for many years) and do the paperwork, prove their identities and send the paperwork to the appropriate government agency to get a marriage license. Ta Dah!!!! Married.
THEN…….if they wish a religious ceremony, of their choice, go to their church, pastor, priest, druid, whatever and have a religious ceremony. If they aren’t religious, throw a big party, get drunk and rake in the presents: which is really what most weddings today seem to be anyway.
Solo Uno, I have been saying this every time this issue comes up. Follow the money. The only reason this is an issue is gays want that tax benefit. Remove this and leave marriage up to religions and it all goes away. The problem is, is the govt. just can’t stand not playing social engineer. Peoples personal decisions/choices should not be in the tax code.
If the religious people feel the gov’t is against them for permitting gay marriage, and gay people would feel discriminated against if they’re not permitted to marry. Maybe gov’t should stay away from the marriage business and remove all, all, all financial and other marriage benefits. Before I begin to get bashed about this not making sense, let it marinate for awhile. This just in, SCOTUS will not stop Alabama from instituting gay marriage.
Solo Uno wrote: “Maybe gov’t should stay away from the marriage business and remove all, all, all financial and other marriage benefits.”
That might be a good start, but gay people would still seek that public affirmation of marriage.
There is a reason government sought to encourage opposite sex marriage, and the problem is that none of those reasons apply to same sex unions.
It would seem to me that marriage, from its inception in human social history, would serve to avoid problems by making a statement acknowledged by the tribe, crew, gang, group, etc. From keeping other suitors from butting in to creating and solidifying bonds between members of a group, a legal union probably appeared obvious very early on. Religion would have been used to throw some further authority on the union, etc, etc, etc,
What I want to know is, who gets to be the husband or wife in gay marriages and why? When one gay introduces the other as his wife, or husband, how did they arrive at these decisions.
Everyone hates someone saying “I told you so,” but… I did predict this would happen right on this very blog.
As long as the government runs roughshod over traditionalists, and as long as it insists upon defining a perversion of marriage upon dubious and irrational arguments of sexual equality, a societal fracture will happen. It is inevitable that civil unrest is the result of civil laws that are, well, uncivilized.
Expect all the haters of God and religion to rejoice in divorcing the religious from any civil recognition. The more people of faith can be demonized and ridiculed, the better for them.
While Mike makes many excellent points in his article, there is one thing I think he overlooks. This new pledge is not so much about these clergy having some sense of importance about their role in marriage. They know full well that their signature on a marriage license has no more power than a notary. What this is really about is them making a symbolic statement that separates themselves from government involvement. It is about perceiving government to be the enemy of the church rather than as joint partners in civil society. This is a statement about that divide. We should pay attention.
Whereas at one time religion was viewed to be the persuasive force for morality, and government was viewed to be the sword of God to execute vengeance upon the unpersuaded immoral actors, now a shift is happening where government will become increasingly viewed as an evil beast hurtful to society. Rather than government being viewed as a partner, it will be viewed increasingly in a negative light. This is not good for civilization.
Soon, Christians and Jews alike will be looking at the U.S. government like the government of Rome which persecuted and killed people of faith. Ironic, since fleeing religious persecution was among the primary reasons the U.S. came into existence in the first place. It also was a reason for the concept of separation of church and State being incorporated into our government charter.
Anytime a large section of society loses trust and faith in its government, that is a bad thing. A lot of citizens are starting to feel that the government no longer represents them. The consent of the governed is diminishing. If we ignore this, it will only increase. We should all reevaluate our rationale that has led us in this direction.
Justice Holmes…… On the money.
When the notion of gay marriage first popped up I wrote to several Gay Organizations suggesting the word marriage be stricken from civil law. Call the union what ever for legal purposes and leave the word marriage to the various religions to exclude and do what they wish. As I recall I got blasted and often.
So sad. Imagine the past decade where the fundamentalist didn’t have this issue to disrupt society and people lives.
Justice Holmes – I think that people should just declare their marriage and that is all it takes. Divorce should be the same.
Have churches ever been legally compelled to marry anyone?
happypappies – godfathers have no power in the civil law that I know of. 🙂
Paul C. Schulte – ya think ;0
Mike A – They certainly have a right to protest and if they do not perform any marriages they cannot be required to perform marriages that violate their conscience.
I have a friend who recently mentioned to me that she was frightened because her Grandson was Christened in the Catholic Church and was the Godson of her Daughters Ex Husband’s Nephew and since the boy lived with her and the Daughter was indigent, she was afraid the Nephew could take the boy legally in view of this.
Seriously, like this was Rome or something. People are so confused.
Good riddance to bigots, even if they are Christan bigots. Now their parishioner will have to have another wedding in the Courthouse, like in some European countries.
It would be better if religious officials were not involved in civil marriages at all. Everyone could get married at city hall and then , if they chse, go to church or some other place of their choice to have it “blessed”. While we are at it lets end the religious exemption from taxes and lets enact laws that make it clear that a religious defense to a civil or criminal statute will not be permitted, period.