Posted by: The Presbyterian Outlook in Untagged on Jun 12, 2012
“Marriage is a gift God has given to all humankind for the well being of the entire human family.”
“ Marriage is a civil contract between a woman and a man.”
“ For Christians, marriage is a covenant."
W-4.9001 (Directory for Worship)
It is time to open a conversation on the question of civil and religious marriage. While this issue is not on the top of the Presbyterian debate list, it is nevertheless worthy of the consideration of all those who authorize or conduct weddings, and seek to balance the rules of the state and the concepts of the church.
My position is that in an ideal world, ministers of the Gospel would be freed from the requirement to act as civil authorities, receiving a marriage license, conducting a ceremony, and then signing the license and returning it to whatever civil body requires its return for filing. Since I have had weddings in more than one state, I had to be licensed to conduct a ceremony by several officials or courts. Various states needed assurance that I was a legitimate minister of religion.
How can the civil authority determine who is a minister? For that matter, what governmental agency has the right to determine whether this or that organization is a church? Some states struggle to answer this question, and a survey of the rules of each state shows variances in the way a “true church” can be found.
For a state to license a minister is an inappropriate mingling of church and government.
The civil authority should ratify the civil component of marriage. Religious societies would then bless and sanctify the civilly contracted marriage. To those attending such a ceremony there would be no visible deviation from the former norm.
In Virginia, in 1960, an elderly woman from the church I served on Virginia’s Eastern Shore accompanied me to the Accomack VA County Court house where she posted a bond of $500.00. The Clerk of Court then issued me a certificate which proclaimed that I could perform marriages anywhere in the state. In my years in Virginia, I conducted a number of weddings, and I was required to indicate on the license where a bond had been posted so that my action was legal.
When I needed a license to conduct a wedding for friends in Louisiana, I simply went to a County Court House and signed in a notebook. Several signatures on the same page showed different levels of script, but we were all, without bond or other proof licensed to hear the vows of people. As a minister, I was required to return the signed certificate to the proper authority.
In Ohio, I applied to the (then) Secretary of State, Sherrod Brown. Having sent in my ten dollars, a beautiful certificate was sent back at me.
In each case, the state requirements were different, but woe betide the minister who failed to fill in the blanks correctly. County clerks are fussy about those details. If you are at all interested in the civil requirements for the conducting of marriage ceremonies, they are readily available on the Internet. Some states have very few requirements. West Virginia, where I live, has a rather detailed list of requirements. I might mention here that when I lived in West Virginia back in the sixties, only ministers could conduct marriage ceremonies. Later, this privilege was given to Justices of the Peace.
Putting it in simplest terms, whether we are in Ohio, West Virginia, Louisiana or Virginia, ministers function as civil authorities. We supervise the making of a civil contract, which may differ from wedding to wedding these days, and take reasonable care to see that the laws are obeyed.
At this point, a question may be raised. How did things develop as they did? A quick review of marriage regulations in the western world seems to indicate that prior to the ascendency of the Roman Church as a political/religious force, marriages were deemed to be civil contracts. As time went on, it seems, the Church took over the role of the civil magistrate. Even today, in a country such as Sweden, ministers are the keepers of some public records and function (at times) as if they were clerks of court. Since the Church of Sweden is a state church, this seems reasonable.
I am not convinced that performing civil duties is a proper role for ministers of the Gospel, but I suspect that few people are ready to question the procedures. That is, unless the couple shows up at the wedding without a license. A minister may be tempted to go ahead and conduct the wedding without a license, and backdate the documents when they appear. I say, if they appear. They may never appear. Or, as in the case of one of my colleagues, the backdating of the license was discovered by a sharp eyed official, and that official demanded that the wedding ceremony be conducted again and the papers properly signed.
These peculiarities may not convince many that ministers ought to be freed from civil requirements. Does not the Directory for Worship of the Presbyterian Church (U. S. A.) call marriage a civil contract? It does, and since it states this to be a basic fact, ministers may be convinced that it is their duty to witness this contract.
In reply to this, I would say, “what is the nature of this contract?” In the various states, a bare bones service is in the law books, and judges and others can conduct a legal marriage ceremony even though it is not required that the couple present documented evidence that they have not been previously married. The regulation of marriage contracts is rather loose. Divorce is another matter.
(On About.com you can get rather detailed information about the requirements by states, some of which are quite complex. According to one site, New York City and Tennessee have very detailed requirements. Some states have almost none. Some states require that the minister of religion be licensed by the state. Others have no such requirement. At least one state permits a couple to perform their own marriage ceremony. ) Possible Sidebar in parentheses
My proposal would involve a change in the law, and the culture.
As far as the government is concerned, the core of marriage is the civil contract. While the duties of the those contracting are not usually spelled out in any detail, a civil official who has the authority to conduct marriages does so on the basis of whatever the law requires. The couple may develop a specific marriage contract, similar to a pre-nuptial agreement. Officiants may want to know if the persons before them are of a certain age, have no impediments to the marriage, and are able to assent to the required vows. This is simple enough, but in these days, the persons presenting themselves for marriage may not be the typical couple. In a few states, John and Jane may be John and Bill. Jane and John may be Jane and Gladys.
In reference to same sex contracts, the Defense of Marriage Act clearly defines certain aspects of the marriage contract. This Act is presently under scrutiny, and parts of it have already been declared unconstitutional by President Barak Obama. (The DOMA is easily retrieved from internet sources)
Churches, however, would cease to be adjuncts of the government, and could celebrate any rites they wished to.
Churches and other religious bodies have persons who are authorized presently to celebrate marriages, and may have unique sets of rules which might be applied only in the particular sect. These covenants would be in accordance with the teachings of various religious bodies, and the conductors of weddings would be free from the need to document the wedding in some civil court or jurisdiction.
The cultural change I am suggesting follows.
Get free from entanglements in the affairs of the state. Let there be no admixture of church (or other religious body) and state. In the past I knew of one Moderator of the General Assembly, the Rev. Dr. David Dobler who would only perform religious marriages. He refused to comply with state rules and required documentation. Perhaps he was in a job where his views were not seen as a danger. If Dr. Dobler had been a parish minister, his refusal to conform to the rules of the state might be a big problem to those seeking marriage.
Can such a change be made? In the present political climate, where the issue of who can marry whom is up for grabs, surely not. A lawyer friend of mine, agreeing with the general tenor of this article said that the word “marriage” should be restricted to religious contexts. Secular society should develop another name for marriage. How about Civil Contract?
In my view, the cultural changes would be difficult, unless religious organizations have the courage to abandon the present customary rules. Couples may resent being referred to the local court house for their civil contract to be affirmed. In places far distant from court houses, it may be that the civil authority will have to expand the number of people who can legally conduct marriages.
What I am calling for cannot happen immediately. Perhaps what I propose cannot happen at all. The alliance between religious entities and government happened over time. To eliminate this alliance may also take much time. Let the conversation begin!
Lawton W. Posey is a retired member of the Presbytery of West Virginia, Presbyterian Church (U.S.A.), after having served for nearly 40 years in Virginia and West Virginia. David Nash is a retired Presbyterian pastor.