Marriage: Legal and Religious, Same Sex and Opposite Sex

5 October 2015

Much of the debate about same sex marriage confuses the two forms of all marriages: Legal (or secular) and Religious (or sectarian or sacred). This confusion results primarily from the conflation of the two forms in state laws empowering clergy to perform both Legal and Religious marriages in one ceremony. Convenient but misleading!

First, we must recognize the nature of a “marriage license”. This document applies only to Legal marriages and has nothing to do with Religious ones. A Legal marriage provides the partners with countless federal and state legal rights and many responsibilities, especially if they have children. A government “license” is required to enter into such a marriage.

No “license” or other government document is or may be required to enter into a Religious marriage. The complementary provisions of the First Amendment prevent the government from prohibiting clerics from marrying same sex couples as well as requiring licenses for Religious marriages. (See note below.)

A Religious marriage is performed by a member of the clergy (typically a minister, priest, rabbi or imam). Each cleric, together with his or her religious institution (usually a church, synagogue, mosque or temple) is totally free to set the requirements for Religious marriage. Such requirements may be totally unrelated to the requirements for Legal marriage in the applicable state, but they usually do overlap. A common overlap is that the partners must be adults of opposite sexes. Religious institutions often add many other requirements, including membership in the institution, a declared belief in the relevant God, regular participation in a ceremony such as holy communion or baptism, and successful completion of a class in a marriage in the applicable religion. In addition, a religious institution may impose requirements based on racial considerations and age differences.

Since no government document is required for a Religious marriage, clerics and their institutions are free to marry persons of the same sex. Such persons become married in the sight of God but receive no legal rights or responsibilities from that marriage. On the other hand, a marriage performed by a judge or other judicial worker conveys all applicable legal rights and responsibilities but does nothing at all for the partners in the sight of God. To receive a blessing from God, the partners must be married by a cleric.

Two examples. If the marriage is first performed by a judge and the partners then desire a Religious marriage, they must be married again by a cleric of their choice. (No license for that marriage is required.) If, however, the marriage if first performed by a cleric upon the presentation of a marriage license, then the result is both a Religious and Legal marriage in one ceremony. It’s simple and convenient, but totally confusing to many people.

Therefore, Kim Davis, the County Clerk in Kentucky, has no basis to complain about issuing marriage licenses to same sex couples. The licenses she issues have no religious significance whatsoever, no matter how many days she spends in jail. Thus it appears that her shouting is solely for the purpose of obtaining publicity against same sex marriages (including an audience with the Pope). It’s not about religion, it’s just politics!

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Note: A North Carolina statute that would have punished any cleric who married two men or two women was void anyway under the First Amendment and was clearly voided by the United States Supreme Court’s decision in Obergefell v. Hodges (June 2015), finding constitutional protection for same sex marriages under the Fourteenth Amendment’s due process and equal protection clauses.

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