A Legal Perspective on the Marriage Pledge

Many of the responses to the Marriage Pledge from both sides of the divide on same-sex marriage have reflected substantial confusion over the distinction between Christian and civil marriage and what the role of the clergy is in the marriage ceremony. My purpose here is to clarify that distinction and then to evaluate criticisms of the Pledge when the distinction between the two types of marriage is properly understood.

A civil marriage contract is one that has its own special formalities that vary by jurisdiction. As an example, I will discuss the formalities of marriage contracts in New York. First, the parties must obtain a marriage license. Second, the contract must be “solemnized” in statutorily-defined ways. Third, the details of the solemnization must be recorded on the license and returned to the county clerk. Finally, the clerk sends the married couple a “certificate of marriage” as proof of the legal validity of the civil marriage contract.

One of the defined ways in which a marriage contract can be solemnized in New York is by “written contract” witnessed and acknowledged before a judge “in the manner required for the acknowledgment of a conveyance of real estate.” The contract can also be solemnized orally before a civic authority, such as a judge, mayor, clerk or marriage officer, or before a clergyman “of any religion.”

The differences between Christian and civil marriage in New York could hardly be more stark. Christian marriage is a lifelong union created by God between a man and a woman; New York civil marriage is a contract between any two eligible people—no bigamy or incest—with terms specified and amended from time to time by the legislature and courts of the state of New York.

Practical Implementation of the Marriage Pledge

The purpose of the Marriage Pledge is to keep these radically different concepts of marriage distinct so that no one, whether inside or outside the Church, thinks they are the same. How might the Pledge work in practice?

Given these considerations, any of the following options would be available to the couple and priest subscribing to the Marriage Pledge:

1. The couple first contracts a civil marriage by either a written contract or oral recitations at the courthouse followed at a convenient time by entering into a Christian marriage.

2. The couple first enters into Christian marriage followed in due course by contracting a civil marriage at the courthouse.

3. The couple could enter into a Christian marriage without entering into a civil contract at all.

In New York, the first of these options would be the preferred one in light of the little known fact that New York law on the necessity of marriage licenses is surprisingly incoherent: one statute states that “it shall be necessary for all persons intended to be married in New York state to obtain a marriage license” while another reads “nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between [eligible] persons.” A recent court decision characterized this latter provision as

an obscure, arcane provision, one that is likely little known to judges, lawyers and legislators alike. And it would undoubtedly come as a surprise to all those couples who patiently wait on the long lines at the Marriage License Bureau at the Office of the City Clerk in lower Manhattan to learn that, despite the instructions they were given, a marriage license is not really a requirement for marrying after all. Ponorovskaya v. Secklow,2014 NY Slip Op 24140 (Sup. Ct., New York County, May 29, 2014).

The Ponorovskaya court invited the legislature to repeal this “forgotten relic from an earlier time” noting that its original purpose was to protect religious marriage from government intrusion:

the Legislature enacted DRL sec. 25 at a time when traditional religious practices continued to hold sway and governmental regulation of marriage was still relatively new. Consequently, the statute was likely meant to protect the old ways by insuring that the validity of a proper religious marriage would not be jeopardized by the failure to obtain a marriage license, a requirement that in 1907 must still have struck many legislators as a mere legal technicality. . . .

Whereas in 1907 a wedding in a church or a synagogue, with the attendant formality, recognition in the community and ecclesiastical record-keeping, was the norm, it is now on its way to being the exception. Thus, the basic rationale for the existence of DRL sec. 25—the need to protect the sanctity of traditional, formal religious marriages from the threat of government imposed legal requirements—is no longer relevant.

The last sentence is a rather chilling reminder of why the principle in the Marriage Pledge is so important: “the need to protect the sanctity of traditional, formal religious marriages from the threat of government imposed legal requirements is no longer relevant.”

Objections to the Marriage Pledge

What would we be doing in the rite of matrimony if not solemnizing civil marriage? Something new?

Not at all. The couples married in a Christian marriage would be doing what they have always been doing since the earliest days of the Church: entering into the “holy estate” of matrimony, the physical and spiritual union created by God upon the making of a public covenant by the bride and groom through their vows. In contrast, as the Ponorovskaya court noted, marriage licenses are “a relatively recent innovation, with statewide registration of marriages not having begun until 1881 at the earliest.”

Clergy taking the Marriage Pledge are leaving the distasteful actions to the couple rather than doing that work themselves and getting their hands dirty.

Hardly. Nothing in either the Pledge or the light of reason suggests there is anything “dirty” about civil marriage. It provides tax benefits to many couples and opens up useful strategies for maximizing Social Security benefits. It is often necessary in private commerce for securing benefits such as health insurance. The fact that non-believers, adherents of other religions and those not eligible for Christian marriage enter these civil contracts as well has no moral significance. They also obtain passports and drivers’ licenses, both of which can be useful to Christians as well. Civil marriage is not distasteful; it can be good. But it is not Christian marriage—although many (including some of the objectors) confuse the two. Hence the need for the Pledge.

This means abandoning the fight for traditional civil marriage in the public square.

Not at all. The fight for traditional civil marriage is based on natural law and the protection and flourishing of society. It cannot be based on an identification or conflation of Christian and civil marriage for they are not and never have been the same thing. The fight to preserve civil marriage, however, is not the same as the fight to protect and strengthen Christian marriage. As public surveys, divorce rates, and even the responses to the Marriage Pledge demonstrate, too many people both inside and outside the Church equate Christian marriage with whatever the state authorities determine civil marriage to be at any given time. The Marriage Pledge is one effort to change that misconception.

Mark McCall is a member of the New York bar and a former partner of an international law firm, practicing in New York, Washington and Paris. He is a Senior Fellow of The Anglican Communion Institute and a commentator on canon law and polity in The Episcopal Church and the Anglican Communion.

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