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.
The views expressed in this posting are the author’s alone and not those of the blog, the host or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays of art are solely their decision and responsibility.
Just who are the ‘haters’?
See comment @ 4:06 for the most use of ‘hate’. Could it be that the guy who always shouts ‘hate’ is, in fact, full of it?
Oh well. It’s not surprising. It’s such an easy way to bully your way through an argument.
And when you’re tired of hate? Switch to ‘cultist’. With any luck there are new readers who have not yet grown tired of such ‘thoughtful, incisive’ commentary.
http://www.washingtonpost.com/politics/alabama-judge-stakes-out-defiant-stance-against-same-sex-marriages/2015/02/09/a1be2de4-b06f-11e4-854b-a38d13486ba1_story.html
“Moore “may sincerely believe state law takes precedence over federal law,” Ronald Krotoszynski, a professor at the University of Alabama School of Law, said Monday. “And if that’s so, it’s unfortunate because it’s plainly wrong.””
Inga wrote: ““Moore “may sincerely believe state law takes precedence over federal law,” Ronald Krotoszynski, a professor at the University of Alabama School of Law, said Monday. “And if that’s so, it’s unfortunate because it’s plainly wrong.”””
Moore does not believe that. He believes that the Constitution preserves the rights of States those powers not delegated to the federal government. Federal judges cannot force probate judges of the State to violate their oath of office to uphold the Constitution. The federal courts have long held that States regulate marriage, not the federal government. These lower court federal judges have exceeded their authority. It will be very interesting to see what SCOTUS does with this issue. It will be very revealing about the integrity of the Justices sitting on the bench. If the SCOTUS does rule in favor of gay marriage, then Justice Moore will have to respect that decision or lead a revolution.
We will hear from SCOTUS later this year on same sex marriage and they will not make davidm happy.
Wadewilliams wrote: “We will hear from SCOTUS later this year on same sex marriage and they will not make davidm happy.”
So you think they will backpedal and change the foundation for what they decided in Windsor?
Congressmen cannot opt out of social security.
Wadewilliams wrote: “Congressmen cannot opt out of social security.”
I stand corrected. This situation was changed in 1984.
From:
http://www.ssa.gov/history/hfaq.html
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All members of Congress, the President and Vice President, Federal judges, and most political appointees, were covered under the Social Security program starting in January 1984.
…
All federal employees hired on or after January 1, 1984 are mandatorily covered under Social Security–the CSRS system is not an option for them.
So there are still some Federal employees, those first hired prior to January 1984, who are not participants in the Social Security system. All other Federal government employees participate in Social Security like everyone else.
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@pete
‘The same way a state handles a divorce between first cousins where marriage between first cousins is unlawful when the cousins were married in a state that does not prohibit that union.’
The same way the federal tax agency does. The state of celebration rule, both marriages of Sally are recogonised and honored. No state can force the parties from lawful marriage(s) to divorce.
State desires the parent to marry the mother or father of the child they created, with runner up being the child with married parents. Bob can freely create children with Sally and Sue – One state e.g. Utah, acknowledges the latter, North Dakota acknowledges the former encouragement of parenthood.
Monte
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 same way a state handles a divorce between first cousins where marriage between first cousins is unlawful when the cousins were married in a state that does not prohibit that union.
DBQ, You are missing my point. The Bible justifies slavery for slave owners and it justifies freedom for slaves and abolitionists. Same book, opposite conclusions leading to opposite actions.
I must conclude that god lies in the person. There is no god/dess out there ordering people to read the text a certain way or to act in a certain way. There are only people who create their god and use “sacred” text according to their own system of values.
There is only human beings, choosing. Some chose evil, others, good.
Yes the Judges are lawless. Aren’t they in contempt of court if they don’t obey the US Supreme Court ruling? And Justice Roy Moore needs to be removed from office once again, this time never to return.
Inga wrote: “Aren’t they in contempt of court if they don’t obey the US Supreme Court ruling?”
The latest U.S. Supreme Court ruling said that marriage was defined by the States. Hopefully we will hear from them again later this year.
For those interested, following is the letter that Justice Roy Moore wrote to Alabama governor Robert Bentley:
http://media.al.com/news_impact/other/Read%20Chief%20Justice%20Moore%20letter.pdf
And following is a link to the complaint by the Southern Poverty Law Center seeking charges against Justice Moore.
http://www.splcenter.org/sites/default/files/downloads/publication/splc_complaint_against_chief_justice_roy_s_moore_january_28_2015.pdf
The homosexual activists will complain that it is the religious (they really mean theists) who are causing all this civil unrest, but the truth is that the gay activists are causing it because they disrespect tradition and use the courts to force their beliefs and practices upon the rest of society. To my knowledge, Justice Roy Moore is not an ordained minister or pastor. He is not representing religion. Rather, he is the properly elected Chief Justice acting according to law against judicial activists who have no concept of what an oath of office means. Few men display the kind of integrity and faithfulness to law and order that Justice Roy Moore shows. If Justice Moore ran for President, I would vote for him. We need more leaders like him that do not bow to political pressure or self preservation.
Jim22: Your comment that the only reason gay people want the right to marry is the tax benefit is insulting and patently untrue. You wrongly presume that we lack the emotional depth to enter into relationships characterized by love and commitment. I cannot imagine that you have any gay friends, but if you had any, they might teach you a few things about how some of us conduct our lives. The older I get, the less tolerance I have for most forms of religion. The idea of America as a theocracy is frightening beyond measure; the lawless Judge Roy Moore is all the proof anyone needs of the danger of faith unhinged.
Mark Reneau wrote: “You wrongly presume that we lack the emotional depth to enter into relationships characterized by love and commitment.”
I fully recognize that homosexuals can enter into relationships of love and commitment, but they (you?) seem to have the idea that this is the primary thing that marriage is about. Love and commitment is only part of it, and those issues can be handled in law as a domestic partnership just fine. Marriage is primarily about a union between two people of the opposite sex, between gender diverse couples, the result of which normally is the creation of a family through the creation of children. Through marriage comes naturally the new relations of husband, wife, father, son, mother, daughter, brother, and sister.
Mark Reneau wrote: “The older I get, the less tolerance I have for most forms of religion.”
That seems to be fairly common among homosexuals. Why is that?
Mark Reneau wrote: “… the lawless Judge Roy Moore is all the proof anyone needs of the danger of faith unhinged.”
Chief Justice Roy Moore is a hero of mine. I am glad to see him standing up on this issue of gay marriage too. States define and regulate marriage, not the federal government. Moore seems to be one of the few people left in our society who actually understands law, the rule of law, and solemn oaths. Justice Moore was absolutely in the right to disobey the federal government when that Judge Myron Thompson gave his unlawful order to move a monument in the State Capital building into a closet where nobody could see it. The idiots were the 9 Judges who voted unanimously to remove him from office, only to have the people elect him back into office later. These lawless Judges acted like little soldiers who must obey orders from superiors even when it violates their oath of office and conscience.
Speaking of myths……one that is confused by people who don’t know finance or tax law is the difference between non profit and tax exempt. In addition the misconception that a non profit or non profit tax exempt organization can’t make a profit. Non Profit doesn’t mean NO profit. They ARE allowed to make money and have some left over (a profit) at the end of the tax year.
Here is a link to an article that clearly explains it.
http://charitylawyerblog.com/2009/10/11/nonprofit-and-charity-law-jargon-buster-non-profit-vs-tax-exempt/
As stated, you see the haters of religion, some w/ personal issues and religion, venting their hatred of religion. Little or no mention of gay people, just spewing venom toward religion. Religion and daddy issues rolled into one big hating machine.
Nick Spinelli
Regarding those “haters of religion” One must note how much they do love and admire the state.
Gays will demand to be married in church and will use the full power of the state to demand that every church, temple and synagogue perform the sacrament of marriage for same sex couples. It is only a matter of time.
I have no doubt that the test cases are already being prepared.
The only religion that will not have to worry is the Muslims because they would be happy to cut off their heads.
Yes, Inga, render unto Caeser, by all means — and unto God….
A church which sacrifices its principles for it’s tax advantage may as well admit that it is a “business”.
But the idea of allowing the State to force a business to serve anyone who comes through the door, without even the charade of a claim that it engages in “Interstate Commerce”, is obscene.
Are pastors, priests and ministers of churches in business? They can’t be compared to the butcher, baker, or candlestick maker, can they? Maybe they should pay tax then?
Inga wrote: “Are pastors, priests and ministers of churches in business? They can’t be compared to the butcher, baker, or candlestick maker, can they? Maybe they should pay tax then?”
They do pay taxes just like everybody else. What you are confusing is the tax exempt nature of the organization with the requirement for all individuals to pay taxes. Pastors can opt out of social security just like Congressmen can, but the staff working in churches cannot. They all must pay income tax and sales tax just like everybody else. The organization can get a break on sales tax just like for profit resellers can. The reasoning has nothing to do with religion. It has to do with the non-profit purpose of the corporation. The legal philosophy is that government and nonprofits are working toward the same purpose in society, so taxing a nonprofit is the same as taxing government (taxing oneself).
You might remember the Indianapolis Baptist Church that was confiscated to pay taxes that the church failed to pay. They are required by law to collect payroll taxes (e.g., social security), but they did not want government entanglement. Because of the concept of separation of church and state, they did not believe that the government had the right to make the church be their tax collector. So they tried to make all their employees independent contractors, responsible to pay their own taxes. If I remember right, they had a school and daycare too. The government said, uh, no, and that was the end for the church property. After their multi-million dollar church was confiscated by armed federal Marshals arresting the pastor and the faithful sitting in the church, the church moved to meeting in schools.
Sex, Politics, & Religion — all in one issue. Got to be a winner.
The Christian ministers who sign the pledge are doing exactly the right thing. No way should a religious leader act as any sort of functionary of the State — period!
Most couples who get married in the Church, use the church for the tradition and the splendor it often affords, and then go on to live like everybody else. They enjoy a tax break but thereafter fail to give their children a Christian education, sending them off to public schools to be defiled spiritually, morally, and intellectually.
Now we shall see if signing a Marriage document is the same as providing a cake or flowers. I hope some belligerent and politically tone-deaf prosecutor somewhere makes that case against a Pastor who “will no longer serve [as an agent of] the state.” The SCOTUS may ultimately free the butcher, the baker, and candle-stick maker to follow their conscience also.
Those Idaho “ministers” are not really ministers of a church, but are owners of a wedding chapel business.
Inga wrote: “Those Idaho “ministers” are not really ministers of a church, but are owners of a wedding chapel business.”
They are ministers of a church. They simply specialize in providing chapel weddings. Yes, it is a business. Most churches are businesses too. They are non-profit businesses. To the government, that’s all they are. Their tax exemptions are based upon them being non-profits, not on whether or not they are religious. There are plenty of 501(c)(3) not-for-profits that have nothing to do with religion. Most churches report themselves to fall under 501(c)(3) of Title 26, which reads:
“(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”
The solution for the Idaho ministers was to reorganize as a church. The reason for that was simply semantics of the the more local law, that specifically exempts churches. The whole thing is silly and simply a problem caused by gay activists fighting for special anti-discrimination laws to protect their immoral activity.
The ironic thing is that If the law was fair, there would be no exemptions for certain groups. Yet what we find in laws that create and protect the concept of gay marriage, or even in the Obama healthcare law, are exceptions for large groups of people. The purpose of that is to quiet down the groups that would disagree with the laws, claiming they will not affect them, and then once the laws are passed, they work on changing the laws to apply to everyone. If we had wise leaders and statesmen, they would see through all the lying rhetoric and not vote for any law that made exceptions. An honest politician who believed in equality would not vote for any law that did not apply equally to all people. Laws that do not apply equally to all are unjust laws.
Jill, True enough I guess. So don’t join the club that offends your beliefs. You have that right but not the right to change others beliefs to fit yours. We, as a nation keep lowering our standards and we will pay for that. Maybe not today or tomorrow, but the signs are starting to show. I had a good friend who was a literal interpreter of the bible that I loved to argue with. At the time, he used to tell me, “As we keep pushing God and religion to the side, don’t turn around and blame religion for what we end up with”. As I get older I see more and more of what he was saying.
I think it’s great actually and all churches should follow suit. Then we would stop hearing the nonsense that the government will ‘force’ them to marry homosexuals.
Jill, one must recognize that these churches that think homosexuality is an abomination, don’t consider the more progressive churches as truly Christian or Christian ‘enough’. They don’t pass the purity test.