Identifying Clergy Whose Marriage Ceremonies are Recognized by State

Mon Jan 5 14:02:54 PST 2009

It strikes me that separating the power of the minister to certify a 
marriage for purposes of state procedure from the religious nature of 
the ceremony is to deny that marriage is an institution which precedes 
the state. Perhaps that's the point.

The IRS decides who is a church for purposes of tax-exemption. Is that 
different from a state determining who is a minister for purposes of 
issuing marriage licenses?

Tangentially related to this topic, I saw a story from Bakersfield, 
California, where a Catholic priest who "started shepherding the largely 
Hispanic congregation about a year ago, discovered that a lot of these 
"husbands and wives" were not really married --- by state or the 
church...The reason...was that many of them --- the majority are 
farmworkers --- are undocumented and fear deportation if they petition 
to be married by the state." Apparently, "The church assuaged their 
fears and provided a marriage preparation course that included a retreat 
and answered all their questions." The article is here: 
http://www.bakersfield.com/138/story/644532.html

Patrick Sternal

James Maule wrote:
>
> Other than "that's the way it's been done," why does the state 
> delegate its "marriage certification" powers? It's not done that way, 
> for example, in France (everyone goes to the town hall and is married 
> by a public official; some then go to a church or wherever and I doubt 
> the state cares other than to the extent it outlaws blocking traffic, 
> noise ordinance violations, etc.)
>
>  
>
> States do not delegate their birth and death registration 
> requirements. Baptisms, bris, funerals, and memorial services are, 
> technically, optional. It's the marriage bit that's complicated. Why 
> not separate marriage from civil registration the way baptism is 
> separated from birth certficate filing and funerals are separated from 
> death certificate filing? Then the state need not get into the 
> question reported by the story.
>
>  
>
> Jim Maule
>
>  
>
> *From:* religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] *On Behalf Of *Douglas Laycock
> *Sent:* Friday, January 02, 2009 5:47 PM
> *To:* religionlaw at lists.ucla.edu
> *Subject:* Re: Identifying Clergy Whose Marriage Ceremonies are 
> Recognized by State
>
>  
>
> This is a problem inherent in the systematic comminging of religious 
> and legal marriage.  If the state says ministers can perform legal 
> acts, then the state has to decide who is a minister.
>
> My sons were home for the holidays, and the older one was talking 
> about a research subject in his forthcoming book who is "a licensed 
> minister in the state of Ohio."  I started to ask him why Ohio was in 
> the business of licensing ministers -- he didn't know -- but then I 
> realized that it must be a way of saying that she can perform 
> marriages in Ohio.
>
> I may have told the list before that when I was in private practice 
> years ago in Texas, a couple came to me wanting to be married by their 
> friend who was not even a mail-order minister.  Texas still had common 
> law marriage.  The friend performed the ceremony, but the legally 
> binding part was that at that ceremony, the couple publicly held 
> themselves out as husband and wife.  They registered it with the 
> county clerk.  I made sure they understood they were really married 
> and that if things ever went bad, they would need a real divorce. 
>
> Quoting James Maule <Maule at law.villanova.edu>:
>
> > Excerpts from http://www.philly.com/philly/news/local/36966974.html
> >
> > Bucks judge approves unusual marriages
> > By Dianna Marder
> > Inquirer Staff Writer
> > There was good news yesterday for Jason and Jennifer O'Neill, a
> > Philadelphia couple whose 2005 Bucks County marriage had been thrown
> > into question because they used a minister ordained online. For many
> > other similarly situated couples, too. Bucks County Court Judge C.
> > Theodore Fritsch Jr. declared the marriage valid, even though the
> > minister - Jason O'Neill's uncle, Robert A. Norman - had been
> > ordained in a matter of minutes by the Universal Life Church after
> > completing a short form online.
> > In the 2007 case that threw the O'Neills' marriage and hundreds of
> > others into question, a York County judge declared a marriage there
> > invalid because the online minister "did not regularly preach in a
> > church or have an actual congregation." But Fritsch ignored the issue
> > of a church building and congregation, ruling instead that the sole
> > question before his court was whether a Universal Life Church (ULC)
> > minister met the Pennsylvania Marriage Act criterion that a minister,
> > priest or rabbi have "a regularly established church."
> > * * * * *
> > But Fritsch's ruling is binding only in Bucks County. "Statewide,
> > thousands of couples will be relieved by this decision, but the
> > threat is not completely absent unless they live in Bucks County,"
> > Kaplowitz said.
> > In the last 10 years, engaged couples, particularly those from
> > different religions like the O'Neills, have increasingly sought to
> > personalize their weddings by having the ceremonies performed by
> > friends ordained online or by non-denominational individuals whose
> > presence would not offend their families' religious practices. That
> > trend drew the ire of some county clerks and registers of wills
> > statewide, who called the practice an affront to the institution of
> > marriage and sought to disqualify so-called online officiants.
> > * * * * *
> > "I guess this means a minister from the Church of the Wineskins, for
> > example - that's another one I've dealt with - would have to prove
> > his church meets at least the same criteria as the ULC," Reilly said.
> > In the last three months, the ACLU has won similar victories in a
> > Montgomery County case involving another ULC minister and in a
> > Philadelphia case involving a Jesuit priest.
> >
> > Jim Maule
> > Professor of Law
> > Villanova University School of Law
> > maule at law.villanova.edu
> > http://vls.law.villanova.edu/prof/maule
> >
> >
> >
>
>  
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
> ------------------------------------------------------------------------
>
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