Religious Marriage v. Legal Marriage

While I fully expect most readers here to understand the distinction between "religious marriage" and "legal marriage" (or "civil marriage"), it is perfectly clear that a large segment of American society does not.  This lack of understanding is playing out as we speak in Rowan County, Kentucky as the Clerk of Court refuses to comply with a preliminary injunction requiring her to issue marriage licenses to same sex couples.  [See Howard Wasserman's posts at here and here at Prawfs and Michelle Meyer's posts here, among others].  

So, because of my Quixotic need to correct people on the internet who are wrong, I reprise a portion of my very first post in the Lounge:

What is “marriage”?  In the United States, the word “marriage” refers to two distinct things.  First, “marriage” is a religious ceremony [or sacrament] whereby two people are joined as partners in the eyes of their God and/or church.  I will call this “Religious Marriage.”  Second, “marriage” is a legal relationship whereby the government recognizes and confers legal rights upon two people who desire to join together and meet a set of government mandated criteria.  I will call this “Legal Marriage.”[1] 

Religious Marriage and Legal Marriage are separate and distinct relationships.  A couple need not be in a Religious Marriage in order to be in a Legal Marriage.  Likewise, a couple need not be in a Legal Marriage to be in a Religious Marriage. 

For example, any magistrate may perform a Legal Marriage in [my home state of] North Carolina.  See N.C. Gen. Stat. § 51-1(1).  All that is required [prior to Obergefell] is a man and a woman who meet the statutory requirements, obtain a marriage license, and, in the presence of a magistrate, take each other as husband and wife.  No religious ceremony need occur and Religious Marriage is neither necessary nor required.  Adherence to any particular religious creed or custom is unnecessary (and would likely violate the Establishment Clause of the First Amendment to the U.S. Constitution).  Every Legal Marriage is a civil marriage, as that is what the law recognizes.  A Legal Marriage may also be a Religious Marriage, but it is not required.  [Further, no marriage license is required for a Religious Marriage.  The ONLY purpose served by a marriage license is to enter a Legal Marriage.]

 

On the flip side, some religions permit plural marriage or polygamy, for example, some Mormon sects (see “Sister Wives” on TLC or “Big Love” on HBO), Islam, a few Jewish sects, and many tribal religions around the world.  Thus, for followers of these religions, it would be perfectly acceptable for one man to have multiple wives.  However, every state prohibits plural marriage (polygamy).  A polygamous Religious Marriage – even if properly ordained and sanctified under the tenets of that religion– is not a Legal Marriage in any state. 

Even a routine Religious Marriage is not automatically a Legal Marriage.  For someone to have both a Religious Marriage and a Legal Marriage, additional steps are required – primarily ensuring that the couple can legally marry[, obtaining a marriage license] and requiring that the minister perform some purely secular bureaucratic functions, like filling out and signing [the] marriage license.  

But if a minister can preside over each, doesn’t this combine Religious Marriage and Legal Marriage?  No.  They remain separate and distinct, despite some overlap.  Many years ago [the various] states decided to make the process for prospective spouses to obtain a Legal Marriage easier by allowing a couple to obtain a Religious Marriage and a Legal Marriage at the same time.  [For more than a century, at least,] ministers have been able to perform both Religious Marriages and Legal Marriages.  See[, for example,] N.C. Gen. Stat. §§ 51-1 and 51-16.  When I was married in 2000, our Episcopal priest performed the Religious Marriage ceremony and then, shortly thereafter, he conducted the Legal Marriage, which required my wife and [me], our two witnesses, and the priest to sign our marriage license certificate.  We then filed the marriage license certificate with the Registrar of Deeds in Dare County, N.C.   Our Episcopal priest thus presided over both our Religious Marriage and our [purely] secular Legal Marriage.  

In other countries, there is a strict distinction between Religious Marriage and Legal Marriage. Ministers only perform Religious Marriages.  [Before or a]fter [the Religious Marriage], a magistrate or other public official conducts the Legal Marriage, which is a purely secular, bureaucratic act.  Here, however, priests and ministers do both.  I think this leads to some of the confusion and the belief that Religious Marriage and Legal Marriage are the same.  However, as I hopefully have illustrated, they are quite different.    

[Opponents of same-sex marriage] keep talking about the “sanctity of marriage” and “holy matrimony” and the Christian Bible.  They are clearly talking about Religious Marriage not Legal Marriage.  Neither [a] state nor the United States of America has the ability to dictate the definition of Religious Marriage.  No government in this country can require a church to marry anyone against its faith.  Government simply has no business in the realm of Religious Marriage. 

Similarly, no particular religion should dictate the rules for Legal Marriage.  The United States, which was originally settled by persecuted religious minorities from Europe (Puritans, Huguenots, Anabaptists, Quakers, Moravians), was designed as a country where religious freedom was paramount.  The separation of church and state is part of the founding philosophy of this country.  (See McCollum v. Board of Education, 333 U.S. 203 (1948) (quoting Thomas Jefferson’s Letter to the Danbury Baptist Association dated Jan. 1, 1802); Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878) (same)).  While the religious beliefs and moral values of executives, legislators and judges naturally inform their decision making, religious doctrine itself has no place in our civil laws. 

But you may say, this is a Christian nation, so Christian beliefs should be embodied in our laws.  As I attempt to illustrate below, to do so would be contrary both to intent of the Founders of this country and the Constitution.  There are many countries where Christianity is the state religion, including, among others, Costa Rica, Liechtenstein, Monaco, Malta, Iceland, and Norway.  The United States, however, is not one of them. 

To clarify this issue, it is important to consider both why the Founding Fathers opted for a Constitutional Republic form of government (not a Democracy and not a Christian theocracy) for the United States and the purpose, in that form government, played by the Constitution. 

One of the primary purposes of the Constitutional Republic form of government that we enjoy in the United States and in [the several states] is that the minority is protected from the desires of the majority.  James Madison addressed this issue explicitly in Federalist No. 10 in explaining the problem of “factions” in a pure democracy:  “When a majority is included in a faction, [a pure democracy] . . . enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our [Constitution is] directed.”  Why did the Founders make this choice?  Because many of the people who originally settled this country were “minorities” in their home countries – whether religious, political, philosophical, or otherwise – and had experienced, first hand, the tyranny of a majority.  For example, many of the early settlers in the North Carolina Piedmont were Quakers, a Christian denomination that was officially persecuted in England under the Quaker Act of 1662 and the Conventicle Act of 1664 as “blasphemers” because of their refusal to conform their religious beliefs to the accepted Anglican theology.  It was because of experiences like this that the Founders opted for this form of government.  In their view, the best way to ensure freedom for ALL citizens was to ensure that the beliefs of the majority could not limit the freedom of the minority. 

***

In short the Constitutional Republic crafted by the Founders and carefully codified in the U.S. Constitution ... was designed to ensure that a majority could not take away the rights of a minority.  A member of the minority is every bit as free and every bit as entitled to Freedom as a member of the majority.   

So, my fellow Americans, religious belief simply plays no role in the issuance of a marriage license.  This is a purely secular act necessary ONLY for the creation of a Legal Marriage. 

---

[1]  Numerous legal academics have discussed the distinctions between religious marriage and legal marriage, so these categories are not my invention, although I did formulate them independently and without prior knowledge of the academic literature.  See, e.g., Sonia Bychkov Green, Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J. L. & Soc. Change 53 (2011); Lynn D. Wardle, Marriage And Religious Liberty: Comparative Law Problems And Conflict Of Laws Solutions, 12 J. L. & Fam. Stud. 315 (2010).  This distinction was also critical to the Massachusetts Supreme Court’s decision in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

Comments

[anon]

Why not label all civil unions civil unions?

That way, no "marriage" for anybody in the legal sphere. Let the state define "civil union" any way it chooses, as the limits of Kennedy's dignity test are tested. A claim to the "dignity" of a civil union can then be the standard by which all challenges are tested.

This would not only be less confusing to many, but wouldn't require this lengthy explanation.

This would also put into focus the reason that "domestic partnerships," defined as having EVERY BENEFIT of "marriage," were rejected as "stigmatizing" ...

[[M][@][c][K]]

Curiously enough, the Catholic Church in Ireland during the recent marriage referendum threatened to refuse to officiate at all marriages if the referendum passed. Essentially Irish law had delegated to priests, rabbis, imams and various other clergy the power to be civil registrars which made religious services a one-stop shop (unlike for example in countries like France where you have to go to the Mairie as well as the church, clearly marking the separation. There was somewhat of an angry backlash:

http://www.independent.ie/irish-news/politics/backlash-as-bishop-threatens-to-refuse-civil-part-of-weddings-31195144.html

After the referendum the Church hoped that the threat would be quietly forgotten about, but pesky journalists kept asking and asking and finally, the Church conceded that, well, ummm, on reflection, well, you know, status quo ante prevails:

http://www.independent.ie/irish-news/news/church-backs-down-on-its-threat-to-boycott-civil-part-of-weddings-31403036.html

[[M][@][c][K]]

I posted something here with a couple of links - it's relevant tangentially - can someone let it through.