Identifying Clergy Whose Marriage Ceremonies are Recognized by State

Mon Jan 5 14:21:16 PST 2009

Marriage, birth, death, baptism, and funeral rites all precede the state. It might be that the state has acquired some sort of vested interest in marriage that it does not have in baptism or funeral rites. But the state need not have done so. The state could have created its own person-to-person concept just as it created the corporation and the limited liability company. Births and deaths exist whether or not a state exists, but so, too, do interpersonal relationships. If the state requires separate registration for birth and death, why not for relatioships? Why piggy-back on what becomes a more and more difficult issue as the nation evolves, namely, what or who is a church or religion? Though the IRS has managed to do a fairly creditable job for tax purposes, there are decisions that can be questioned, and there is not total consistency between what or who the IRS classifies or "accepts" as a church or religion and what or who states and localities accept (or perhaps, even other federal agencies).

Jim Maule

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Patrick Sternal
Sent: Monday, January 05, 2009 5:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Identifying Clergy Whose Marriage Ceremonies are Recognized by State

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> [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<mailto: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><mailto: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<mailto: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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