Friday, March 29, 2013

A thought about civil and religious marriage.

Essentially, a religious marriage ceremony sanctifies a union in accord with the practices of the specific religion involved. A marriage recognized by the state has many but not all the characteristics of a contract, but also has consequences in the law that a contract does not have. In some cases a single ceremony satisfies both religious and civil requirements, but not always.

In Maryland, where I live, couples who qualify can obtain a marriage license and may be legally married someone authorized to conduct marriages by a recognized church or by someone authorized by the Circuit Court; in either case the officiating person  would normally then issue a certificate legalizing the union.

Note that a couple might be married in a civil ceremony with license and certificate, and the marriage not accepted as such in the couple's religion. Thus the Catholic Church would not recognize a civil service as the sacrament of marriage unless the ceremony was performed a priest. Indeed, it does not recognize divorce so that if either bride or groom had received the sacrament of marriage with a living person, then the couple's new marriage would not be conducted by a priest and their civil marriage would not be recognized by the Catholic Church.

Equally, a priest or minister might perform a wedding that would not be recognized by the state. Most simply, were a wedding to be performed without license and/or without a certificate of marriage, it would not be recognized by the state. Similarly, same sex marriages performed in churches in Maryland would not have been accepted as civil marriages before this year. Were some church to perform a group marriage, a polygamous marriage or a polyandrous marriage in Maryland, the result would not be seen as legal in the state.

The Defense of Marriage Act of the federal government is thought to affect the treatment of "married couples" 1,100 different federal laws. That seems like a lot of legislation to be based on definitions of marriage that differ greatly among our 50 states. I also wonder whether all the laws that make distinctions based on marriage might be better formulated based on other criteria, such as the number of children cared for by a couple. I think about old people who live together and would like to get married by can not afford to do so because of the financial implications of the federal laws. Perhaps we need more differentiated legal situations that would allow all those laws to be more finely tuned to achieve public purposes.

The United States has a strong tradition of separation of church and state. The country would presumably not want to interfere with any religion sanctifying any union that it chose, unless there was an overriding public policy reason to do so (such as child welfare or public health). On the other hand both the federal government and state governments have public policy reasons to promote certain types of marriages. Perhaps, as is done in other countries, that there should be a civil marriage performed by a civil official in all cases to qualify for state and federal treatment as married people. Those who wished to be married also in a religious service would be free to do so.

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