The First Amendment and The Ambiguity of Marriage

This is an interesting post that came several days ago. I meant to front-page it but somehow it got overlooked, so I am rectifying the omission, carol. Originally posted 2009-03-19 06:50:18 -0500.

Some marriages in Pennsylvania are being annulled. Not because of domestic strife, but because of over-zealous county clerks with political agendas.

In 2004, Michelle and Marc planned to marry in Philadelphia and get their license in Bucks County - a decision influenced only by the office's proximity to their home in Hatboro.

They were acting within the law, of course. Couples can buy their marriage licenses in any one of Pennsylvania's 67 counties and hold their ceremonies in any other.

So how, the Toths now wonder, is their marriage considered legal in Montgomery County, but possibly null and void in Bucks?

The short answer is that the people responsible for issuing marriage licenses - the 67 elected clerks of Orphans Court - are at odds with one another. And the growing ranks of couples using a nontraditional officiant or no officiant at all are getting caught in the conflict.

On one side are clerks, such as those in Bucks and Delaware counties, who want the state marriage-license law tightened. They say the institution of marriage is being sullied, if not undermined, by nontraditional ministers and those who they believe are irreligious, liberal couples seeking to stretch the law.

On the other side are clerks, including those in Philadelphia, Chester, and Montgomery counties, who say the law is clear as long as it is read without bias. Their position has the backing of the American Civil Liberties Union. (This issue does not exist in New Jersey.)

The irreligious are stretching the law by getting themselves married in a way that is consistent with their beliefs? Interesting. Seems like we need a reminder about that pesky First Amendment which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This is not Congress acting, but it is well worth the time to review what it was that our Founding Fathers were concerned about to see why these clerks are being truly unamerican.

The context for the Founders' concern about Church and State comes from a conflict between their Enlightenment roots and their English heritage. England had an official Church, the Church of England, and this had two effects that they wanted to avoid for this nation. First, having an official Church meant having an official theology. This would curtail the open and free marketplace of religious ideas, something abhorrent to children of the Enlightenment. Further, it allowed the Church a place as the source of governmental legitimacy. The Divine Right of Kings was overseen by those who had a monopoly on the Divine. For thinkers trying to set up a democratic system where the government derived legitimacy from the will of the people, an official theological doctrine was problematic.

So, let's turn back to Pennsylvania. What is the worry of these clerks? People are getting married by people other than judges or "legitimate" clergy.

But in recent years, weddings have shifted toward a personalized approach. More couples, like the Toths, have wanted to write and conduct their own ceremonies or have someone close to them do the honors.

That troubled David Cleaver, the lawyer who represents the Association of Clerks, on two fronts. He envisioned that marriages solemnized by clergy from unknown, possibly Internet-based churches eventually might be challenged in court. And, Cleaver said, if self-uniting ceremonies ever were challenged, that would undermine the status of legitimate Quaker marriages, too.

Long-standing marriages could be declared null and void, Cleaver warned. Children could be bastardized, and government pensions and military benefits might be put in jeopardy.

Marriages would not be legitimate because the clergy who conducted them were not "legitimate" clergy. What makes them legitimate? According to York County judge Maria Musti Cook they have established congregations and church buildings. Truly a peculiar ruling.

We give clergy the power we give to justices of the peace and judges, but no one else. Why? Because marriage is ambiguous. Gay-marriage opponents repeatedly refer to THE definition of marriage, as if it only has one definition. But like so many words, of course, marriage has multiple definitions, many different senses in which the word may be legitimately used. It is a legal status, a religious ritual, and a social standing just to name three. And these are all different. When I was 13, I had a bar mitzvah. the rabbi said that on May 2, 1982 I was a man. But I could not legally drive a car, join the military, purchase or consume alcohol, was still covered by my parent's insurance...I was an adult in the religious community, but not in terms of the legal status. The two are separate.

This is precisely the separation we fail to make in the case of marriage. My wife and I wrote our ceremony and had a non-standard officiant. I recently was ordained myself by the Church of Universal Life in order to marry two dear, dear friends, writing the ceremony ourselves and including rituals we appropriated and created to make the moment spiritually meaningful in the broadest sense of that term. These were weddings in every way.

What the clerks in Pennsylvania (and the opponents of gay marriage -- and let's not fool ourselves into thinking these are separate issues, just as stem cell research is really a proxy abortion battle this is really about gay marriage) are doing has two steps: first, willfully conflate the religious status of marriage with the legal status of marriage; second, define the religious status of marriage theologically. Both steps are fallacious.

The first is the basis for the scare tactics of the "defense of marriage" bigots. Legalizing same sex marriages would not force any church to marry anyone they did not want. As an atheist, I could not get married by most Christian clergy. Churches are their own clubs and they run by their own rules. Just as the Moose or the Freemasons or the Shriners could refuse my request for membership, so too conservative churches could refuse requests to marry same sex couples just as they refuse to marry couples of other faith traditions. But the Shirners could not refuse my right to peaceably assemble with others. That is a right I have and needs to be protected even if they don't want me congregating with them. Similarly, the church may refuse to marry a couple, but it is wrong for them to deny them the right to marry.

But it is the second step that is particularly pernicious here. Clergy being defined in terms of established organizations with special status in that organization. This has crossed the line into government mandated theology, exactly what our Framers intended to avoid. Quakers do not allow that anyone has special standing or powers. Judaism, similarly, does not endow rabbis with any special powers or connection to the divine -- they are simply scholars, just another person with a job like any doctor or butcher. It also takes those who are deeply spiritual, but whose sense of the Divine is not to be found in any organized religion and excludes them, radicals like the Father of our Constitution, Thomas Paine,

"I do not believe in the creed professed by the Jewish church, by the Roman church, by the Greek church, by the Turkish church, by the Protestant church, nor by any church that I know of. My own mind is my own church."

This decision, this interpretation privileges a theological viewpoint and enshrines it in law. It is based upon the idea that while there is no one denomination that is an official religion, that there is a theological foundation that defines what is to be considered a religion officially. This is a distinction without a difference. In the Church of England, there were theologians with divergent opinions, but they were part of a religious movement that was married to the State. Here we have Catholic priests and Protestant ministers with theological differences, but are part of religious movement that is now married to the state.

That is unamerican, that is precisely what the First Amendment to the United States Constitution was designed to protect against. It is an offense to the open and free marketplace of ideas and it is an offense to the secular foundation of our government. It is not only wrong, it is a dishonest and disguised attempt to further a cause dedicated to removing the rights of an oppressed group of Americans.

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Why can't "marriage" as a commitment to the other, be sanctified or celebrated by whatever ceremony, ritual we choose or neither of the above, as we see fit, while the legal benefits and protections that now accrue to "marriage" are covered by a stricktly civil procedure ie a civil union.

Civil union is in my opinion important to protect children who might be born or adopted by a couple, and also to deal with questions of joint property in cases of divorce or incapacity, etc. It should be open to two consenting adults above a minimum age who are free to marry (ie not already married).

As I understand it one of the issues in the last Israeli election was taking control of who can marry legally away from a certain group of Orthodox rabbis now in control, who will only marry those whom them deem to be practising the Jewish religion according to their strictures. We have not come to that here, but there is a tendency in that direction which you point out in your extremely interesting commentary.

carol