Clergy Should Stop Solemnizing Marriages

Blaine Robison, M.A.

Published 28 February 2014; Revised 5 November 2016

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Legal Notice: This article is intended to provide accurate information on the subject matter covered. However, the reader understands that the author is not a lawyer and is not engaged in rendering legal or other professional service to any person, church, organization or entity.  Whenever an explanation or interpretation of the law or advice on legal alternatives is required, the services of a competent legal professional should be sought.

In the Beginning

In the beginning God not only created the heavens and the earth, but He also created marriage. The first social institution began with the creation of Adam, then the woman whom God gave to him. The first two chapters of Genesis set forth the principles by which God intended marriage to be governed. For the foundational principles of marriage see my web article Marriage By Design.

The early peoples quickly developed procedures to facilitate marriage. One of the characteristics of the antediluvian world was "marrying and giving in marriage" (Matt 24:38). The principles given to Adam would have guided the marriage institution into patriarchal times and then with the covenant with Israel, these principles were expanded and refined with more definitive procedures.

The process of getting married in ancient Hebrew and Jewish culture may be pieced together from various stories in the Bible and the Apocrypha, and instructions found in the Talmud. The Ketubot (Marriage Agreements) and Kiddushin (Betrothal) tractates in the Nashim (“women” or “wives”) portion of the Mishnah contain the most definitive information on laws that governed Jewish marriage. Nevertheless, while there were essential elements in all the marriages, the biblical stories illustrate that no two weddings were exactly alike, since the process was controlled by the parents and the bride and groom - not priests, rabbis or government. In Bible times the average couple did not even have a wedding as conceived of in Christianity. For a detailed description of the ancient marriage practice see my web article Marriage in Ancient Israel.

Change in Marriage Authority

The leaders of Christianity decided to end the freedom of marriage and introduced a new paradigm. The Council of Trent (1563) was concerned about the practice of polygamy and concubinage (among Christians and Jews) and so issued an edict that opposed plural marriage in the strongest terms. In Canon II of the Doctrine on the Sacrament of Matrimony, the Church declared: “If any one saith, that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law; let him be anathema.” In the Decree on the Reformation of Marriage the Church banned “concubinage” in all their lands and called upon the civil authority to enforce this ruling by the most severe punishments to those who did not put away their concubines.

In addition, the edict institutionalized monogamy, requiring all marital partners to have been baptized into the Church and weddings to be performed by a priest. A marriage so entered is both a sacrament and indissoluble (once married always married). The Church called upon civil authority to enforce their unbiblical edict.

Civil control

Eventually civil government determined not to simply be an enforcement agency of the Church. In 1837 civil marriage was introduced in England and other countries followed suit. In 1911 the U.S. National Conference of Commissioners on Uniform State Laws proposed a uniform marriage act to be adopted by all states. Some of the recommended requirements was abolishing common-law marriage, requiring a marriage license and a uniform procedure for solemnizing marriages. In 1923 marriage licenses were finally mandated in the USA, but the primary reason was to prevent common-law marriage and miscegenation (inter-racial marriage).

Marriage laws have changed considerably since 1923. The basic legal requirements for marriage currently are (1) age 18; 16 or 17 with parental consent; (2) competent (able to choose); (3) non-relative (except first cousin in 25 states). (See Marriage Laws, Legal Information Institute, Cornell University. CAVEAT: This table links to the marriage laws of the states and attempts to summarize some of their salient points. Those interested in the marriage law of a particular jurisdiction should review its law directly rather than rely on this summary which may not be fully accurate or complete.)

Various categories of marriage or "marriage-like" relationships now exist in society and specifically prescribed or tolerated under the law. (See U.S. Marriage Laws.)

Married by license.

Common Law marriage – 15 states

Domestic Partnership (Civil Union) – 8 states

Same-sex “marriage” – The U.S. Supreme Court, overriding the will of the people, has decided that all states must recognize homosexual marriage.

Cohabitation with contract

Living together (cohabiting without contract). Only a few states still criminalize "lewd and lascivious" cohabitation (Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia).

With the institution of marriage licensing came certain legal benefits:

File joint tax returns & claim dependency deductions.

Receive marital and dependency benefits available from government programs.

Receive a share of the deceased spouse's estate under intestate succession laws.

Claim gift and estate tax benefits.

Sue for wrongful death or alienation of affection.

Receive family rates for insurance.

Avoid the deportation of a non-citizen spouse.

Enter places where visitors are restricted to immediate family.

Live in neighborhoods zoned "families only."

Make medical decisions for your spouse in the event of a disability.

Claim the marital communication privilege.

Clergy Participation

Members of the clergy routinely officiate at weddings and solemnize marriages. To "solemnize" means to exercise authority vested by the state to pronounce that a couple is legally married. However, there are some reasons for clergy persons to consider abandoning this practice.

Scripture does not provide priests, ministers and rabbis with authority to “solemnize” a marriage. (The Catholic Church gave this authority to its priests at the Council of Trent.) A marriage does not require anyone saying "I pronounce you husband and wife" to be valid before God. In the Bible marriage is accomplished solely by the consent of the woman and consummation.

Given the legal recognition for "marriage" of homosexuals (a contradiction in terms), ministers may be at risk legally if they refuse to conduct a "gay" wedding. A minister may assert First Amendment rights when acting according to his religious conscience, but very likely a liberal Federal court would rule that a minister acting as an agent of the state has lost that First Amendment protection. Judges and lawyers do not have the right to discriminate based on sexual orientation. See the story of an Idaho minister facing jail time and a fine for refusing to conduct a wedding for a homosexual couple. (In this case the minister operates a wedding business and was clearly targeted.)

The solution is simple. Ministers should formally notify the County Clerk by certified mail that they will no longer sign marriage licenses for anyone, nor will any wedding be allowed in their facilities that employs a minister with such authority. Churches and synagogues could take the extra step of establishing a policy of denying applications from homosexual or so-called transgender couples to use their buildings for weddings and/or wedding celebrations.

Ministers could still participate in weddings of their parishioners, but only to represent themselves as witnesses of a couple's covenant of marriage and lead the celebration much as the minister leads a worship service. By state law people are not required to have a wedding ceremony to be legally married and only need to sign an affidavit at the County Clerk's office affirming they take each other as spouses. So the minister should leave the legal arrangements solely to the couple's discretion.

Copyright © 2014-2016 by Blaine Robison. All rights reserved.