Love, Marriage, and the First Amendment

People are passing the following meme around thinking that it is arguing for the legalization of same-sex marriages. It’s not, although I’m confident Rev. Joe Hoffman would also like that to happen.


The law in question, part of Amendment One, makes it a crime to perform a marriage ceremony for a couple who doesn’t have a marriage license. North Carolina does not issue marriage licenses for same-sex couples, although ceremonies can be performed for people who have such licenses from other states.

What is Legal Marriage?

Western culture has a long history of marriage ceremonies being performed by clergy. Thus, we tend to assume all religious marriages are legal marriages, and they aren’t.

In most states, anyone can perform a marriage. The officiant can be 10 years old and blow bubbles at the bride and groom for all the government cares.

However, there are requirements for legal marriage, and the requirements go well beyond gender. There are minimum ages, for example, as well as limits to familial closeness. In no state can you marry a sibling or a parent, for example, although currently more states allow you to marry your first cousin (19, plus Washington D.C., plus a handful of states in certain circumstances (source)) than to marry a member of your gender.

Officiants commonly have to be ordained and registered with the state in order to perform a legal marriage, and there are definitions of “ordination.” Just because you lead a religious group does not mean you are ordained.

Churches that provide non-legal marriages often call them blessings in order to clarify that it is not legal marriage. However, Amendment One makes blessings illegal.

Churches Will Never Be Forced to Perform Same-Sex Marriages

Throughout the struggle for legalizing same-sex marriage, conservatives have objected such a change in law would force their churches to perform such ceremonies, which is absolutely false. Churches are under no obligation to marry anyone. Some churches force a couple to undergo counseling and will refuse to marry a couple if they feel they are unsuitable for some reason, for example.  Many will only marry members of the church.  This is all perfectly legal.

If a couple cannot find a house of worship to marry them, or they simply don’t want a religious marriage, there are various options for secular, legal marriages, including doing it at a courthouse.

When Spiritual Marriage Isn’t Legal, and Vice-Versa

Not nearly everyone is both spiritually and legally married. Polygamists, for example, have dodged bigamy laws by having one legal marriage alongside several spiritual marriages. Legally speaking, such a man is living with his wife plus mistresses. Among the polygamous community, he is living with all his wives.

The Catholic Church does not recognize divorce, so a Catholic who divorces and legally remarries is officially seen as an adulterer by the Church, since it considers the person still married to the original spouse. (Remarriage after the death of a spouse is perfectly acceptable.)

So a legal marriage does not require church approval, and a church’s religious marriage ceremony is not necessarily legal. No First Amendment problem.

But Amendment One says a church can’t even perform a spiritual marriage unless it is also a legal union. The state is telling churches what is can and cannot do ceremonially.

It doesn’t help that conservatives have continued to make this an argument about legalization of same-sex marriages:

“This is sadly, and predictably, the ‘lawsuit of the week’ filed by those who want to impose same-sex marriage on North Carolina,” [NC Values Coalition executive director Tami Fitzgerald] said. “Moreover, it’s both ironic and sad that an entire religious denomination and its clergy who purport holding to Christian teachings on marriage would look to the courts to justify their errant beliefs.” (source)

But that’s not what’s being argued.  The argument is about the performing of religious ceremony.

There’s also the ever-threatening use of “impose,” as if legalizing same-sex marriage will force people to enter such arrangements.

Marriage in History

Some opponents of same-sex marriage argue that such unions redefine marriage. We’ve been redefining marriage for centuries. Emperor Augustus of Rome, for example, set a minimum age of 12 for a girl to marry and limited betrothals to two years to limit families from betrothing their toddlers. There were also legal penalties for not bearing children. Throughout Rome, both men and women had to have the permission of the head of  household, regardless of age.

A woman might be executed for adultery, but a man was allowed to freely have sex with prostitutes and slaves.

In plenty of cultures, girls were essentially sold via the bride price, which is what the groom’s family would pay the bride’s family.

Redefining Marriage: No Goats

Marriages are generally legal contracts. There may be religious ritual included in the ceremony, but the essence of a marriage is a contract, and that contract is primarily about legitimate births and inheritance. Legitimate children commonly have a right of inheritance. Illegitimate ones do not. In some cultures, legitimacy may affect other rights as well.

But how do you make sure your wife’s children are really yours? You legislate who she can have relationships with, which frequently involves limiting her general behavior so you can be more sure she’s not having extra-marital affairs.

Marriage in Christianity

Early Christians had no religious ritual for marriage. Like the pagan Romans, marriage was a legal contract. It became more and more common for priests to bless a marriage, but it was not a requirement. And while marriage is one of the seven sacraments of the Catholic Church, it was first stated as such in the 12th century.

But even then a church ceremony was not required for a marriage to be legitimate. Ideally, the wedding would be held in a church and, barring this, at least attended by a priest. Barring that, it should at least have witnesses. However, technically speaking, a couple can be married if they have simply pledged themselves to one another. The problem with that scenario is there’s no way to prove it. That’s the point of witnesses.

However, by at least the High Middle Ages, the Church was recognized as the arbiter of a variety of marriage-oriented issues including inheritance and legitimacy. This is why kings had to go through the pope to get rid of pesky wives.

…and why it was really helpful to have priest present for a marriage to be recognized as a marriage.

This arrangement was all well and good when Catholicism was the only religious game in town, but it got more and more complicated as more Europeans stopped being Catholic during the Reformation. And then what do you do when atheists and deists start showing up in droves during the Enlightenment? Marriage once more became a secular matter by law, even if religious institutions were still commonly facilitating the creation of that legal contract.

Marriage is not religious unless you want it to be.Gay Marriage, or As I call it: Marriage

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