Why Religious Institutions Must Divorce the State Marriage System

By Karl Denninger, March 3rd, 2002

Let me preface my remarks by saying that they apply only to those religions that call themselves "Judeo-Christian." It is not that I intend to cast aspersions on the other religions of the world - I just lack the knowledge to know if the arguments made here would apply to them! Muslims and others are free to adopt these principles, and views, if in fact they comport with their view of theology.....

The very title is explosive. It is intended to be. What follows is not an analysis of the problems with the current state marriage system itself - but rather, why such a system cannot possibly comport with the "establishment clause" of the US Constitution - or without making a mockery of the religious institution that adheres to it.

First, let's examine what a State Marriage License is. It is a document issued by a state that gives you permission to marry in a State of the United States. That is, it is a document that evidences a PRIVILEGE bestowed upon two persons by a unit of the United States Government, and for which the persons who accept the privilege are required to, in return, give up certain individual rights.

What rights? Here are a few:

  1. Your right to your individual property acquired post-marriage, and in some states, your property that you may own at the time of your marriage.
  2. Your right, in some states, to be considered a separate individual for credit and finanical purposes. That is, if your spouse contracts a debt, you can (in some states) be equally held responsible for that debt.
  3. Your right to define what is, and what is not, egregious conduct within your marriage and what constitutes "fault". Indeed, in all 50 states today, it is a matter of law that a marriage may be ended by either party for any reason, and that you are absolutely foreclosed for claiming that your spouse has committed a tort against you in the matter of their conduct during the marriage for which you may recover in a civil court.
  4. Your right to determine if your partnership may be ended, on what terms it will be ended, and the procedures which you will follow to end it - all must be voluntarily waived.
  5. Your right to negotiate how your children will be raised is subject to your spouse's objection AND the desires of and implementation of a third party, specifically the state.
  6. The rules under which you may end your marriage, or indeed if you may end it; the division of property and the determination of custody of your children not only are impossible to determine in advance of your marriage, you must consent to the fact that these rules may change at any time DURING your marriage, without your consent!

Now, all Judeo-Christian religions have their own "canons" (or laws) regarding marriage, family and divorce. The Catholic Church, for example, prohibits you from being married more than once in your life, with very few exceptions (the exception is that you must prove that the original marriage was defective in some way, or one of the original partners has died.) Most religions also have various expectations - call them "laws" if you will - regarding the conduct of spouses - the rights and duties of both partners.

The most obvious rendition of this is the marriage vows that one most often hear in a Church. They often read something like this:

"Do you, N., take N. as your lawful wedded {wife|husband|? To have and to hold, to cherish and to protect, for richer or for poorer, for better or for worse, in sickness and in health, forsaking all others until death do you part?"

"I do."

I didn't see anything in that passage about "until I find a more attractive person I'd prefer to sleep with", or "until you lose your shirt in the stock market", or "until I want to take our kids and move to Arizona with my new lover, sticking you with a huge child support bill"

This clear disconnect runs afoul of two issues immediately: The Establishment Clause and, more recently The Freedom of Religion Act. I shall treat each separately, although they are both part of the same thing.

The Establishment Clause

The First Amendment to the US Constitution reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

And the 14th Amendment applies this to the States (whether they like it or not) with the following text:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It is the second clause of the First Amemdment that is specifically a problem here.

A state regulating the conduct of marriage and its dissolution is inherently violative of the First Amendment. Why? Because I know of not one single major Judeo-Christian religion that sanctions the "state" view of what a marriage is, how one may be contracted, what constitutes grounds for dissolving one or what the rights of redress should be if one violates the covenant taken before God in the marriage ceremony!

The States, for their part, will argue that these regulations are necessary to guard the general welfare of the public. But what, pray tell, is actually guarded in the marriage license process? Two things:

  1. That you are not committing bigamy (a criminal offense)
  2. That the two parties to the marriage are not too closely related (e.g. a brother and sister.) There is a legitimate argument for this, in that the progeny of such a couple has a far higher risk of being born deformed or with other serious genetic defects.
  3. That the two parties are of the opposite gender (the latter is under attack in a number of jurisdictions)

Let's assume we accept this premise. Even if we do, none of these premesis have anything to do with the promises made between the parties to a marriage in a church, nor to their enforceability! Yet the forced waiver of these duties and their enforcability is, in fact, a direct violation of the Establishment Clause, as it prohibits the free exercise of religion by the parties.

It is a given that freedom includes the freedom to contract; to set standards for conduct, privileges that come with that conduct and penalties for failure to abide by that conduct. Religion is, after all, as much about conduct as anything else.

THE GOVERNMENT IS BARRED FROM POSTING THE TEN COMMANDMENTS ON THE LAWN OF THE STATE LEGISLATURE.

WHY IS IT THAT THIS SAME GOVERNMENT THAT CANNOT POST THE TEN COMMANDMENTS CAN ACCEPT A SIGNATURE ON A MARRIAGE LICENSE FROM THE PASTOR OF A CHURCH!

AND WHY IS IT THAT A CHURCH SHOULD AGREE TO BE THE AGENT OF THE STATE IN PROMULGATING A PUBLIC POLICY IT DOES NOT AGREE WITH!

Interestingly enough, The Religious Freedom Restoration Act of 1983 was struck down by the US Supreme Court as it applies to the states.

HOWEVER, several states have their own Religious Freedom Restoration Acts on their own law books! Those States are Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Rhode Island, South Carolina and Texas. These laws, generally speaking, act to prohibit the government from "targeting" religious practices and beliefs with their laws and provide that in the event that a "compelling interest" is asserted by the government that a regulatory law must be as narrowly tailored as possible to address that compelling interest.

What does all this mean?

Religions should adopt the following view on marriage and related family issues:

  1. Marriage is inherently a religious function and sacrement. The Church will not defile its sacremental obligations and functioning by co-mingling it with the functions and acts of the state. Specifically, and to the point at hand, religious organizations should refuse to execute any state marriage license as a clear violation of the Establishment Clause.
  2. The Church will develop and promulgate rules for couples desiring to get married. These will include whatever pre-marriage preparatory counseling that the Church deems appropriate, including but not limited to a frank discussion of the rights and responsibilities of the parties to that sacrement.
  3. The Church may, if their view of marriage requires or admits, have the parties to a marriage execute a legally binding agreement coincident with their church ceremony that is in conformity with the rules and regulations of the Church. Such an agreement may include specific rules regarding what is required for a dissolution of a marriage and the rights and responsibilities of both parties in such an event. Specifically, such an agreement may require that all matters, including property division, by submitted to arbitration operated by the Church's judicial function.

In states where there is no "common law" marriage, this would completely split apart the church marriage function from that of the state, and furthermore, could force couples married in a church to adjudicate their disputes in the Church rather than taking them to a civil court! The Establishment Clause prohibits the government from interfering with this process, provided that the parties have not waived their rights - if they have not executed a GOVERNMENT marriage license they have, in fact, not waived anything!

It is a well-settled matter of law that individuals may contract away their right to sue. Binding arbitration agreements are both legal and widely used - go read your stock broker's agreement sometime, or the one you signed when you bought a car or some other big-ticket item. There's a good chance that it contains a pre-dispute arbitration agreement - these have held up for a very long time.

Further, "full faith and credit" in the US Constitution (and case law) requires that such an agreement contracted in one state MUST be observed in another. This is so firmly ingrained in US Jurisprudence that there is no way it will ever be repudiated.

Marriage is a Religious, not a Secular, institution.

If religions in this country are truly serious about their rhetoric about familiy, children and marriage they cannot possibly support the gross and outrageous hypocrisy found in the current State marriage, divorce and custody laws. This body of law flies in the face of essentially every Judeo-Christian religion and further, there is no reason (in law or equity) why a Church is required to "play along"!

Its an idea that dates back to the founding of Christianity, and its one that the religions of the United States need to take a serious look at for today and tomorrow.