June 10, 2015

On "Civil" and "Church" Marriage and Ministerial Abstention

I am on record as opposing the withdrawal of ministers from signing marriage certificates on behalf of the state. I think that the time is not yet ripe to do so, and we have a great deal of education to do before such an occurrence would be prudent. I would also counsel waiting until religious are forced out of civil marriage, such as when ministers are required, as a condition of signing certificates, to perform marriages which violate religious belief.

With that said, our ministers, and here I include Rabbis, Imams, Pastors, Priests, and other religious who are legally able to perform marriages and sign a wedding certificate on behalf of the couple for the state, must take into account the possible outcomes of their refusal - what legal effect the refusal could have on couples getting married. While (as noted) I disagree that it is yet necessary (or prudent) for a minister to withdraw from signing marriage certificates, what follows is a brief discussion of various points which I, as an attorney, think that ministers should consider when withdrawing from signing marriage certificates. I am based in the state of Indiana, but I would not be surprised if very similar advice were applicable in other states. If in doubt, naturally, consult your local attorney.

First, I must distinguish between the legal effect of civil and "church" marriage (I use "church" broadly here - apologies to Muslim readers - mosques are included in the broad definition), or ministerial marriage. A civil marriage, in essence, is one in which the couple is recognized as a couple by the state, which carries a broad set of legal assumptions with it. Ministerial marriage is, without a marriage certificate, a legal nullity. The couple is not considered married by the state, and are treated as unmarried cohabitors under the law, not unlike roommates, with no presumptions attached legally.

I would like to note what benefits a civil marriage confers.

First, marriage confers the assumption of legitimacy of offspring. In other words, a child born of an intact civil marriage is presumed to be the child of the mother and father (this may, of course, change with same-sex marriage, or new laws may be passed), unless proven otherwise. This guarantees a certain amount of legal stability from the outset. This law is, in essence, a mother and child protection law. The father need not sign a paternity affidavit (or be forced to admit paternity through genetic testing) , as in the case of unmarried parents. Nor is there an immediate potential for legal action to seek child support.

Relatedly, marriage confers legal legitimacy on the couple themselves. In the majority of states, Indiana included, marriage gives a surviving spouse certain rights, such as the presumption of equal division of property in a divorce, and in the event of the death of one spouse. Those rights do not exist for unmarried couples, absent very careful contractual planning, which is both expensive and time-consuming. Even in the event of an annulment or ecclesiastical divorce, the property of the marriage would still be subject to division by the state, but without civil marriage, there would be no presumptions in favor of an equal division of property. A husband or wife who remained at home to raise the children while the other spouse worked would find themselves on the legal short end of the stick without civil marriage.

My recommendation is that ministers require a couple to get married civilly prior to a religious ceremony. Let us posit three types of couples who get married in a church. First, the committed religious couple. Second, the couple with one religious partner and one not. Third, the couple who is ministerially married only for the sake of some relative or "tradition" - nothing more.

The first couple may get married in a church, and then, without further counseling, never follow through with civil marriage, having concluded (correctly) that the church wedding is all that matters for their souls. However, they must receive counseling as to the legal effect of their decision not to engage the state. Both, especially the woman in our day and age, must be made aware that there will be no legal recourse for property division if one or the other abandons the spouse due to a later "change of mind" or "deconversion," and made aware that the man must sign a paternity affidavit to agree that he is the father of the children in order to so establish that fact. Having the couple obtain a civil marriage first would obviate these problems.

In regard to the second couple, the same problems obtain. In this case, it is even more urgent for the religious spouse that the binding nature of the law be enforced. The nonreligious spouse is less likely to attach much importance to a legal nullity, no matter how important to the religious spouse. Moreover, this provides an easy way for the nonreligious spouse to "have the milk without the cow," holding the constant threat of abandonment for the "bigger better deal" over the other spouse, especially where the nonreligious spouse is providing the income and owns the property. While this is a problem in civil marriage as well, at the very least, the spouse has some legal protection in terms of property division and child support.

With the third couple, they are more likely to only get married civilly, and without the ability for a "two in one," may avoid a church wedding entirely. This would be, in the eyes of the Catholic Church, at least, an unfortunate occurrence, but one that is unlikely to be avoided in any case when a minister is withdrawing from signing state marriage certificates. This couple may always return later to obtain a ministerial marriage.

These are a few of the thoughts I have regarding the discussion any minister ought to have with a couple, should the minister withdraw from civil marriage certification. The couple must be made aware of the legal ramifications of marrying solely in a church, without legal sanction of the state. This affects the couple themselves, in the eyes of the law, the process when one partner dies or abandons the spouse, the balance of power between the couple, and the ramifications for children. I would go so far as to say that a minister must make all couples aware that the state does not recognize the ministerial marriage and that, at least, the couple should consult a lawyer prior to deciding not to be civilly married to consider the full legal outcomes of such a decision.

10 comments:

  1. I read your first post on this subject and thought it was spot-on. I don't quite understand the recommendation in this post to *separate* civil and church marriage. Given all the excellent considerations you have raised, and given your very sensible arguments against the strange position that it is somehow *wrong* for a minister to be an agent of the state in solemnizing a civil marriage, what is wrong with what generations of Americans have already been doing--obtaining a marriage license from a county clerk and then combining the civil and religious marriage ceremony in one, officiated over by a minister acting in both a civil and religious role simultaneously?

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  2. But perhaps I am misunderstanding this post. Are you perhaps saying only that the civil marriage should be contracted first (and hence separately, but first) *if* a given minister refuses to act as an agent of the state and sign the marriage certificate for them? So you are assuming a situation in which a minister (wrongly, given your previous arguments) has a conscientious objection to doing so and are recommending what he should counsel the couple in that case for their legal protection?

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    1. Lydia,

      Thank you! Yes - the latter. If a minister IS going to take this approach, these are the things of which s/he should be aware and counsel the couple. I have edited the post to better reflect that. Thank you again.

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  3. Your reference to a paternity affidavit seems to me important from the man's perspective as well. Correct me if I'm wrong, but my impression is that, absent documentation, questions of custody and parental rights could arise for an unmarried father (that is, a father without a civil marriage) in the event that the mother dies or is incapacitated. I'm not saying that it is _likely_ that the state would challenge custody of such a father, but my impression is that it is legally _possible_ for the state to do so because no "marital presumption of paternity" exists. The father is, legally, treated as the mother's live-in boyfriend. So the possibility arises that, say, the wife (in the eyes of God) is killed in a car accident and suddenly the state questions the father's prima facie custody of your children.

    I bring this up because it seems to me that libertarians are sometimes extremely foolish about these issues and need to see civil marriage as keeping the state in its place, forcing the state to recognize the sphere sovereignty of the family, rather than state "interference." Also, this scenario does not involve dysfunction between the husband and wife (as in abandonment, separation, etc.) but only tragedy.

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    1. Lydia,

      Very much so. The State would tend not to get involved if someone wants to claim paternity, particularly when the father insists on a DNA test. However, the state will always be looming in the background, ready to assert power.

      Libertarians suffer from the purely negative concept of liberty in so many ways. I think that was Kirk's point in this article: http://www.mmisi.org/ma/25_04/kirk.pdf

      One of the best discussions of the incursion of the state into family matters is the following article http://www.theimaginativeconservative.org/2013/06/freedom-and-the-family-the-family-crisis-and-the-future-of-western-civilization.html by Stephen Baskerville.

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    2. Also, I've now added your blog to my reading list. I had seen it before, but when I switched readers some time back, i do not think it made it with the switch.

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    3. It occurs to me that someone might argue that the birth certificate would at least protect the father in the event of the mother's death (from having his custody challenged), but one can imagine situations where, e.g., the mother died in childbirth before naming the father.

      It's my experience (not as a lawyer, but just anecdotally) that there remains a residual bias against unmarried mothers in American family courts and child protection services. This is actually (if I'm right) a surprisingly healthy thing, because statistically children are in fact safer in a married family. What it means in practice is that a couple that doesn't get civilly married may be more subject to court sympathy for intrusion by some other relative--e.g., a grandparent--into their familial decisions for their children.

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    4. Thank you for adding my blog.

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  4. The couple should also be told that a refusal to be civilly married makes it extremely urgent for them to make out durable powers of attorney for healthcare naming each other. This is a good idea in any event, but in the absence of any civil marriage it's even more important, because there would be no legal presumption at all that the other member of the couple could make healthcare decisions if one were rendered incompetent.

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