See also The Marriage Pledge to which this refers
My ACI colleagues Ephraim Radner and Christopher Seitz have recently published a “Marriage Pledge” in the journal First Things in which they undertake to refrain from serving as agents of the state in marriage by, e.g., signing government-provided marriage certificates. Couples will be asked to contract civil marriage separately from “weddings that seek to establish a Christian marriage in accord with the principles articulated and lived out from the beginning of the Church’s life.” Their reasoning is that as civil marriage has been progressively redefined it no longer coincides with the Christian understanding of marriage: “to continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage.”
…Many of the responses to the Marriage Pledge from both sides of the divide on same sex marriage have reflected substantial confusion over the distinction between Christian and civil marriage and what the role of the clergy is in the marriage ceremony. My purpose here is to clarify that distinction and then to evaluate criticisms of the Pledge in light of this discussion.
………………
…The differences between Christian and civil marriage in New York (and note once again that the nature and terms of civil marriage vary from state to state) could hardly be more stark. Christian marriage is a lifelong union created by God between a man and a woman; New York civil marriage is a terminable contract between any two eligible people””no bigamy or incest””with terms specified and amended from time to time by the legislature and courts of the state of New York.
Practical Implementation of the Marriage Pledge
The purpose of the Marriage Pledge is to keep these radically different concepts of marriage distinct so that no one, whether inside or outside the Church, thinks they are the same. How might the Pledge work in practice?……
Given these considerations, any of the following options would be available to the couple and priest subscribing to the Marriage Pledge:
1.The couple first contracts a civil marriage either by a written contract or oral recitations at the courthouse followed at a convenient time by entering into a Christian marriage using any of the three matrimonial rites specified in the Book of Common Prayer: “The Celebration and Blessing of a Marriage”; “The Blessing of a Civil Marriage”; or “An Order of Marriage.” All are consistent with the prior creation of a civil marriage contract.
2.The couple first enters into Christian marriage by means of either the first or third of the matrimonial rites followed in due course by contracting a civil marriage at the courthouse. The rite for “Blessing of a Civil Marriage” would not be appropriate for obvious reasons, but neither of the other two prohibits a subsequent civil contract. The rubrics for both require compliance with the civil law, but the civil law does not require a simultaneous””or even any””religious ceremony.
3.The couple could enter into a Christian marriage without entering into a civil contract at all. As noted earlier, one interpretation of the rubric and canonical requirement of compliance with civil law is that a civil contract is necessary, but civil law does not require that all religious marriages also be civil ones. Thus, the most likely effect of this provision is to prohibit bigamous and incestuous marriages.
…….
Objections to the Marriage Pledge
It is in light of the above what to make of the objections made thus far to the Pledge?
What would we be doing in the rite of matrimony if not solemnizing civil marriage? Something new?
Not at all. The couples married in a Christian marriage would be doing what they have always been doing since the earliest days of the church””and doing in the Episcopal Church since the publication of the 1789 Book of Common Prayer: entering into the “holy estate” of matrimony, the physical and spiritual union created by God upon the making of a public covenant by the bride and groom through their vows. In contrast, as the Ponorovskaya court noted, marriage licenses are “a relatively recent innovation, with statewide registration of marriages not having begun until 1881 at the earliest.”
Clergy taking the Marriage Pledge are leaving the distasteful actions to the couple rather than doing that work themselves and getting their hands dirty.
Hardly. Nothing in either the Pledge or the light of reason suggests there is anything “dirty” about civil marriage. It provides tax benefits to many couples and opens up useful strategies for maximizing Social Security benefits. It is often necessary in private commerce for securing benefits such as health insurance. The fact that non-believers, adherents of other religions and those not eligible for Christian marriage enter these civil contracts as well has no moral significance. They also obtain passports and drivers’ licenses, both of which can be useful to Christians as well. Civil marriage is not distasteful; it can be good. But it is not Christian marriage””although many (including some of the objectors) confuse the two. Hence the need for the Pledge.
This means abandoning the fight for traditional civil marriage in the public square.
Not at all. The fight for traditional civil marriage is based on natural law and the protection and flourishing of society. It cannot be based on an identification or conflation of Christian and civil marriage for they are not and never have been the same thing. The fight to preserve civil marriage, however, is not the same as the fight to protect and strengthen Christian marriage. As public surveys, divorce rates and even the responses to the Marriage Pledge demonstrate, too many people both inside and outside the church equate Christian marriage with whatever the state authorities determine civil marriage to be at any given time. The Marriage Pledge is one effort to change that misconception.
Read it all and there is a shortened version without the BCP, canonical and legal references on First Things
A very helpful analysis and answers to some of the questions posed recently. It is very sad seeing the Christian links being rendered by the state in so many areas in our countries.
I wonder how typical the New York situation is of other States?
At a guess, I’d say most state laws would run pretty closely with New York’s…because there is a huge effort to attempt to have laws on important subjects be similar from one state to another.
300+ have signed, from a brilliant swath of Christianity.
Even ‘Foley Beach, Archbishop of ACNA’ has affixed his name! (I assume this is a prank.)
3. You can take it to the bank that ++Foley Beach has not signed it.
#4 — glad for your extremely firm confirmation!
Currently in Australia a marriage is between a man and a woman. If this changes I will be handing in my marriage licence. As an Anglican priest I cannot legally marry anyone without a licence, so I will simply stop marrying people. Without a licence the church, even if it had a mind to cannot force me to conduct same sex “marriages.”
In the last two years at our synod we have had “marriage equality” resolutions presented and passed, on both occasions the Archbishop has said he is unable to sign the resolution. This has created a huge gulf between the Arch and a number of senior clergy who supported the motion. He had telegraphed his opposition to the motion in his charge, but the numpties went ahead anyway. (it is after all, all about them!) The rumour mill says he would have supported it, but is constrained by the national church. Even so, senior clergy voting against an archbishop knowing he could not support a motion looks an awful like a rebellion.
There is a perception – unfortunately shared by some Christians – that if it is legal it is at least ok – if not right. This steps us back from that perception by separating the legal from the moral. Both have their place in an “open” society. Hopefully this is a step in reframing the discussion and perhaps taking back some ground that the church/Christians have unfortunately ceded.
The author Mark McCall does a fine job of distinguishing Christian matrimony from civil marriage – and makes clear that this is no recent development; it has its roots back in the Bill of Rights and the separation of church and state. The Marriage Pledge alleges that the same-sex marriage issue presents a “new definition,†but in truth there have always been distinctly different definitions of Christian marriage vs. civil marriage: The same-sex marriage dispute and the Marriage Pledge have simply highlighted the existing divide. But it must be emphasized that Christian clergy have been “intertwined†with civil marriage for the entire history of our nation.
Under McCall’s analysis, if American clergy refuse to sign marriage licenses, they have three options: 1) have the couple first married before a civil magistrate, or 2) perform the wedding ceremony over the couple, and then send them off to the courthouse for a subsequent civil marriage, or 3) perform the wedding ceremony over the couple with no more direction. Although listed as three options, in fact there are only two options: Either a civil ceremony before the Christian ceremony, or a church service with no marriage license, and a possible civil marriage later. Whether or not the couple in fact undertakes a civil marriage is beyond the control of the clergy – so the clergyperson has only two practical options.
A marriage recognized by the civil law is critical to life in 21st century America. If a couple desires to be wed, but NOT have that marriage recognized by civil authority, then they also should not have children, seek healthcare, own property, or face probate. The prospect of living a married life without the formality of civil marriage may appeal to hardcore libertarians, who refuse to file income tax returns, who burn their social security checks or drive their cars without state-issued tags – but it is hardly an attractive alternative for most folks.
The second option – performing a marriage ceremony without a marriage license – leads to another tier of trouble. Many clergy do not have the latitude to marry a couple without a marriage license, because of the internal church rules. In the Episcopal Church, clergy are governed by canon law, where the canons provide: “Every Member of the Clergy of this Church shall conform to the laws of the State governing the creation of the civil status of marriage….†Here is the “intertwining†to which Episcopal clergy Seitz and Radner object: In TEC if you perform a wedding, you must “conform†to state law – and state law will require a marriage license and signature thereon. “Shall conform†does not mean a hope and a prayer that the marrying couple will have a subsequent civil marriage. TEC canon law requires that the church marriage be recognized by state law. If TEC clergy attempts the second option, performing a marriage ceremony pursuant to his/her authority as ordained TEC clergy without a marriage license, then he/she runs afoul of TEC disciplinary rules and may be brought up before the bishop.
I found similar rules in the Book of Discipline of the United Methodist Church.
The Presbyterian Church of America Book of Church Order provides, at Section 59-6:
Marriage is of a public nature. The welfare of civil society, the happiness of families, and the credit of Christianity, are deeply interested in it. Therefore, the purpose of marriage should be sufficiently published a proper time previously to the solemnization to it. It is enjoined on all ministers to be careful that, in this matter, they obey the laws of the community to the extent that those laws do not transgress the laws of God as interpreted by the Constitution of the Presbyterian Church in America….
Similarly, the canon law of the Anglican Church of North America enjoins its clergy to perform a marriage license only if the marrying parties “have a valid marriage license.†ACNA Canons, Title II section 3. Certainly ANCA contemplates that clergy will duly sign the license.
For TEC, ACNA, PCA and UMC clergy, the only effective option is the first one – performing a ceremony only over a couple who have previously been married in a civil ceremony. The Episcopal understanding is that this a blessing, provided for the rite at page 433 of the Book of Common Prayer, and it has been popularly illustrated in modern times by the marriage of Prince Charles and his wife Camilla. That option has little appeal for many of us “folks in the pew†and will provide significant pastoral problems for pastors who seek to pursue it.
RE: “Similarly, the canon law of the Anglican Church of North America enjoins its clergy to perform a marriage license only if the marrying parties “have a valid marriage license.†ACNA Canons, Title II section 3. Certainly ANCA contemplates that clergy will duly sign the license.”
And as I’ve pointed out countless times, couples are perfectly capable of acquiring the “valid marriage license,” getting the church marriage, then returning to the JP to get the civil ceremony, complete with signing the marriage license by the JP. Thank goodness that ACNA does not make it a requirement that clergy will do as Dick Mitchell wishes and “duly sign the license.” ; > )
“A marriage recognized by the civil law is critical to life in 21st century America. If a couple desires to be wed, but NOT have that marriage recognized by civil authority, then they also should not have children, seek healthcare, own property, or face probate.”
In other words a secular benefit delivery device. The Church need not be complicite in this and, in my opinion, Sarah is, as usual, exactly correct
#8 Thank goodness Attorney McCall has written a clear essay which addresses your concerns, repeated frequently above.
I have two further questions on the legal issue, with some comments:
Firstly, is there currently any legal definition of the role a priest performs in a church wedding? Is he defined as an agent of the state (see Marriage Pledge and #5 below)? Or is his role is more like that of a tax preparer, attesting, along with the couple and the witnesses, that the requirements of the license – see ##2-3 below – have been performed? Would clarification of this question matter to signers of the Marriage Pledge?
Secondly, how far can the state accommodate civil marriage to Christian conscience, especially where same-sex marriage has become state or national law?
Let me explain. As it is now normally practiced, “lawful†Christian marriage – “in the sight of God and this company†– comprises six elements:
1. Issuing of marriage license – by state
2. Marriage vows – by couple, before priest or magistrate, with witnesses
3. Marriage pronouncement – by priest or magistrate, with witnesses
4. Marriage blessing – by priest in the name of the Trinity
5. Signing of license – by couple, priest or magistrate, and witnesses
6. Consummation – by couple
It seems to me ##2 and 3 are the rub, and the challenge is the avoidance of two sets of vows and pronouncements.
My question is this: could the law accommodate one or more of the following possibilities?
1. The magistrate simply signs the license without any vows and pronouncement upon certification from the priest that the couple had been duly married in church (#1-3 above). If necessary, the priest could attest this in person.
2. The magistrate permits the couple to employ a distinctly Christian “liturgy†in his office before pronouncing the couple married as husband and wife (I understand that many JPs allow couples to write their own vows). The couple then proceeds to have a blessing of the marriage in church.
3. The magistrate permits the couple to employ a distinctly Christian “liturgy†in his office and allows the attending priest to pronounce the couple married, and then signs the license. The marriage may be subsequently blessed in church.
Are any of these ideas are currently legal? If not, might legislators or administrators redefine the role of the clergy in terms that make clear their role as functionaries of traditional marriage only? Or might they enact laws or regulations to permit one of the civil options above? It strikes me that this would be politically likely in conservative states if same-sex marriage is declared the law of the land. It might even be likely in liberal states that want to make the new law seem less onerous to religious dissenters.
#11. Counselor McCall’s analysis of “how this works” in terms of the interplay of the marriage license and a church ceremony is consistent with what I have said — he describes 3 options, and I boiled it down to 2 options. The questions I am asking — and I don’t believe McCall adequately explored this — is how this works in terms of internal church discipline.
My own advice is that for any clergy in the Anglican tradition to check with their own bishop or chancellor before taking any irreversible steps.
“the challenge is the avoidance of two sets of vows and pronouncements” — for whom? And why exactly? Leaving aside whether this is in fact necessary, I am curious why it seems critical. Are you saying that it would void the church event?
#13
I address the TEC canons and rubrics explicitly in the ACI version. The shorter First Things extract omits the canonical discussion.
One frequent interpretation of the rubric that the marriage must “conform to the laws of the State†is that it means the ceremony must conform to the laws of the state BY HAVING A RELIGIOUS CEREMONY THAT SIMULTANEOUSLY VALIDATES A CIVIL MARRIAGE CONTRACT. As I explain in the essay, I don’t read it this way. Instead, I read this language in what I regard as the simpler and more natural way as meaning conform to the laws of the state BY NOT ACTING CONTRARY TO STATE LAW.
I think my interpretation is supported by its predecessor, the prior rubric in effect from 1789 through 1928: “The laws respecting Matrimony, whether by publishing the Banns in churches, or by License, being different in the several States, every Minister is left to the direction of those laws, in every thing that regards the civil contract between the parties.â€
This indicates that the point of this rubric is compliance with state law insofar as the civil contract is concerned. It is not concerned with the Christian ceremony. Since state law does not require a simultaneous religious ceremony—or even a religious ceremony at all—nothing in state law or this rubric addresses the issue raised by the marriage pledge.
Mark McCall
Thanks. This is what Radner and I assumed as well.
“Instead, I read this language in what I regard as the simpler and more natural way as meaning conform to the laws of the state BY NOT ACTING CONTRARY TO STATE LAW.”
#12
Clergy officiating at weddings are not defined as agents of the state in those terms, but instead are permitted to function as such in New York by the marriage statute which requires that the assent to the marriage contract be “solemnized†whether orally or in writing before a public officer—with one exception: clergy can be substituted for the public officer. This makes clergy de facto agents of the state since they are performing a function otherwise required to be performed by a public officer.
For civil law purposes the only substantive thing (leaving formalities to the side) required for a valid marriage contract is that the couple consent to the formation of a marriage contract. It could be as simple as “I assent to the formation of a civil marriage contract.†Thus the only thing in the matrimonial rite that matters to the civil law is the vows. The pronouncement and blessing are irrelevant.
I see no reason why there must be a single ceremony and one set of vows. Indeed, among western nations, this is an anomaly. It is routine in countries basing their legal systems on Roman law and the Napoleonic code (what lawyers call “civil law†systems) for there to be two ceremonies. This includes, e.g., much of Europe and Mexico.
[blockquote]A marriage recognized by the civil law is critical to life in 21st century America.[/blockquote]
Not at all. Cohabiting without benefit of civil or ecclesial recognition has become a standard fixture of 21st century America. Couples who had a church wedding would have the same legal status as cohabitating couples. They would, however, have a Christian marriage, as well as the church’s recognition. And, for Christians, that is what matters.
18. “Cohabiting without benefit of civil or ecclesial recognition has become a standard fixture of 21st century America.:
Such an existence is widespread, as we all know. I dispute that it has become a standard of American life for most Americans. I think we who follow God have a higher standard than that provided by shacking up.
Luke,
A careful reading of what I wrote would indicate that the ONLY parallel I was making concerned legal status, which was in response to no 8 above: “A marriage recognized by the civil law is critical to life in 21st century America.” Well, no. That is obviously not the case.
The “however” in the next to last sentence indicates a fundamental distinction. As I wrote, such couples would “have a Christian marriage.” They certainly would not be “shacking up,” unless we presume the very point about “civil marriage” that Profs. Radner and Seitz are disputing.
You draw a fine line, and I see your distinction.
Nevrrtheless, I stand by my comment on the sentence I quoted, as you wrote it.
Wildfire #17 comments on countries influenced by the anticlericalism of the French and subsequent revolutions. Marriage is instituted by God and for some time the state simply recognized the relationship witnessed by the church. In England for a long time matters of personal status like marriage were dealt with in the church courts. In British America the royal governors exercised the royal ecclesiastical jurisdiction – and collected the fees. After the American Revolution states registered marriages done in churches and by magistrates when no church was available.