You Got Your State in My Church! Well, You Got Your Church in My State!

Frankly, I don’t care if Count Olaf is ordained

Over in the Pagan Channel here at Patheos, I found an interesting religious liberty case.  Literata Hurley is a Wiccan priestess, and she is trying to get the state of Virginia to allow her to officiate at weddings.  Unlike a lot of states, who let pretty much anyone get ‘ordained’ online through the Universal Life Church, Virginia has standards for what it really means to be a religious leader.  Not particularly well defined standards, mind you, but, y’know, standards.

I presented my certificate of ordination and documentation of the 501c3 status of the Order of the White Moon, which ordained me. Since my Order is incorporated in California, the secretary asked me if I had a congregation in Virginia; I said yes. She asked me to list the address of the congregation, and I said that we don’t have a building. She asked, “So, what, you just meet in each other’s homes?” I said yes, we meet in each other’s homes, or out of doors (Wicca is, after all, an earth-based religion, but I thought that mentioning that would only be prejudicial to my situation).

She left and came back with the Clerk of Court, Paul Ferguson. Mr. Ferguson said that they were not going to approve me. I asked if it was because we don’t have a building. He said, “Yes, you don’t have a building, and there were a few other things.” I asked him if he would give me a written list of the reasons I was being denied. He refused; he offered to show me the relevant section (Sec 20-23) of the Virginia Code. I assured him that I had read the Code, and asked again if he would give me more specific reasons I was being denied. He said that approving these applications was at his “discretion” and that he didn’t “feel” I met the qualifications, but he wouldn’t tell me how. He told me that I could apply to another court in another county but that he thought they would probably give me the same answer.

Now, when I read this story, all I can think is: Why on earth would Virginia bureaucrats want to ever be in the situation where they get asked ‘Is this religious-y enough to be a religion? From a civil point of view, the state doesn’t care what religious ceremonies you’ve got to go along with your marriage license.  They don’t care if you’ve got a dispensation for marrying an unbaptized person, they don’t care if you have the permission of your intended’s parents, they don’t care if your officiant is secretly an atheist.  The state only cares if you satisfy the legal requirements of the relevant jurisdiction.  That’s a matter for the court clerk, not the person performing the wedding.

There’s no reason for the state to get muddled in the sacred side of things.  Civil marriage and religious marriage are different institutions and ought to be treated as such.  There’s no reason for Literata or any religious leader to serve the functions of the state.  They should no more sign off on marriage certificates than they do on drivers licenses.

This kind of church-state fuzziness causes problems when a state employee is suddenly called upon to review the validity of Literata’s religious calling or to define exactly what a ‘church’ is.  It’s hard to treat unfamiliar groups fairly, especially when some political groups are working just within the state definitions of ‘religion’ in order to claim conscience objections to anti-piracy law.  As much as possible, the state shouldn’t create laws that will ask them to adjudicate theological questions.

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  • anodognosic

    On the one hand, it’s an argument for civil marriages to be under the exclusive purview of the notary public. It’s that way in Brazil, and it works just fine. On the other, in a state where religions are afforded tax-exempt status and conscience exemptions to certain laws, there’s really no way of getting around having government bureaucracies adjudicating this kind of thing.

  • pieter

    Are you sure this is a theological question? Isn’t this just about what religions this state acknowledges?

    • frozenocean

      Valid question. And another one I think is why on earth are government officials sponsoring some religions as more valid than others? Doesn’t the constitution outlaw such preferential judgments? I think the person the article talks about should be recognized; I know many churches that meet in homes and schools – and not just so-called “alternative religions” – I mean many Christian groups, too. I was ordained at, so naturally I think anyone with enough conviction should be recognized and treated equally, but conviction isn’t something a clerk can assess based on where you meet.

      • Simon

        i don’t think they do outlaw those judgments. the people at challenged the courts in pennsylvania when they didn’t allow their ministers to perform weddings there; they even paid the legal expenses of a couple who challenged PA… maybe they’ll do the same for virginia.

  • Andre Santos

    I found this:

    It’s amazing to see that five years ago you were already a fighter.

  • @Leah, you say: Civil marriage and religious marriage are different institutions and ought to be treated as such.

    I think this is actually what a good deal of the current arguments are about. I myself am fairly undecided on the issue. On the one hand, there is enough “overlap” between civil and sacred marriage that it seems there should be at least some conversation between religions and governments, if not an agreement on a common standard definition. On the other hand, the way different religions treat marriage, and the way various governments treat marriage, are so variable – and at variance with one another – that the law ought to conform to the reality of plural definitions of marriage rather than to some imagined universal standard.

    Certainly, a hard line between civil and sacred marriage would solve many of our practical problems – on all sides of the issue. And society has in many eras of history and in many parts of the world got on just fine with no government/civil involvement in marriage; possibly (my history is fuzzier here, so please correct me) also without any religious involvement as well. Marriage is about as ancient and universal an arrangement as any we know of.

    I think the reason the Catholic bishops are fighting for a civil recognition of traditional marriage is that the Church sees marriage as a natural institution prior to it being a sacred one. Marriage – primarily because it creates a new family unit which adds to society through procreation – has direct implications on the common good, and therefore is a legitimate object of social (and perhaps governmental) regulation.

    I have a hard time understanding what non-traditional marriage advocates actually are seeking when they pursue marriage. With no-fault divorce, the “till death do us part” is rendered meaningless. With few or no social stigmas for extramarital sexual activity, the benefit of social acceptance is nullified, and perhaps also the drama of romantic consummation. Without a normal expectation of children, the benefit to the community is minimized if not lost. I’m unclear on what exactly a wedding celebrates for a couple (or a community) that rejects the traditional notion of marriage.

    That last paragraph is a genuine question: can you, Leah, or some of your readers, help me understand what the positive good is that non-traditional marriage advocates are seeking?

    • kenneth

      Non-traditional marriage advocates are seeking equity before the law. The patchwork of semi-recognitions afforded under “civil unions” as they are presently construed is insufficient. It is also explicitly defined in a way that makes it clear that it’s not “real” in the eyes of the state. The crux of the argument, at least as I have made it for years, is this: Catholics or Christians generally have no right to impose their theological construct of marriage upon the rest of us. Marriage is not some immutable concept that has always been in agreement with contemporary Christian concepts of the arrangement. Civil marriage is not, and never has been, about sanctifying anything before God. The government does not bestow sacraments in this country. Never has and never will. A civil marriage is a matter of contract law, pure and simple. There is absolutely no good secular reason for not granting these contracts to same sex couples. I think we ought to call it “civil marriage” and separate that notion forever from sacramental marriage. The state should not be in the business of defining sacramental religion, and churches get no special say in defining civil marriage for others.

      • Doragoon

        Injustice is treating things that are the same as different, or things that are different as the same. Are men and women different? If they are different, then treating them as such is not unjust. Most people reject the notion that men and women are equivalent or interchangeable. If they are the same, then the issue shouldn’t be a problem because homosexuals have no reason to choose one sex over the other to be their spouse, and the word looses it’s meaning.

        • kenneth

          What does the difference between men and women have to do with anything in this instance?

          • Ted Seeber

            About the same reason why homosexual acts are wrong. If you don’t understand one, there is no way that you will ever be able to understand the other.

          • Ted Seeber

            Without the biological differences between man and woman, the marriage will not produce any children. The *ONLY* valid interest the state has in supporting people’s living arrangements (or not supporting them) is protection of children.

            Which is why, ultimately, I am for the utter removal of civil marriage laws and replacing them with civil unions for all; perhaps with term limits.

          • kenneth

            I understand why in Catholic theology same sex relations are considered wrong, but the state has no place as religious police or enforcers of doctrine in our system of governance. I have no problem with the churches refusing to sanctify same sex marriage, or any that doesn’t meet their standard.

          • Doragoon

            How do you define homosexual (marriage or otherwise) without using sex or gender?

        • Paul Prescod

          ” Injustice is treating things that are the same as different, or things that are different as the same. ”

          Exactly. EXACTLY! And each of us is an individual: especially with regards to our sexual identity. Some men have breasts. Some women have beards. Some women like to box. Some men like to shop. Some women are born without a womb. Some men are born without a penis. Some men are born wanting to have sex with others who fit the male gender body pattern. Some women are born wanting to have sex with others who fit the female gender body pattern. Some people do not care about body pattern at all.

          These are not irrelevant corner cases. They are fundamental challenges to your metaphysical claim that “God” made us all out of templates called “man” and “women”. If that was God’s plan, then he’s failed miserably, because there is a LOT of diversity out there. Not just XX and XY, but sometimes XXY and who knows what else.

          Now I’m sorry

          > Are men and women different? If they are different, then treating them as such is not unjust.

          Demographically men and women are different. But at a biological, physiological, psychological, sociological and morphological level, there is no statement you can make about “all men” and “all women” that will match the actual evidence on the ground.

          > Most people reject the notion that men and women are equivalent or interchangeable. If they are the same, then the issue shouldn’t be a problem because homosexuals have no reason to choose one sex over the other to be their spouse, and the word looses it’s meaning.

          People do not choose “one sex over the other for a spouse” you insensitive twit.


          A person might find that he or she is mostly attracted to individuals that are very masculine, or individuals with big breasts or individuals with a strong social conscience. The person’s technique for selecting another individual is not your business. But it is certainly not as simple as “choosing a gender.” I am attracted only to women, but I am not attracted to ALL women. And bisexuals like Leah are not attracted to ONLY men.

          Your categories are scientifically meaningless, in the sense that only “most” people fit into the categories and virtually no behaviours or body features are 100% consistently tired to the categories. And to the extent that your metaphysical view is at odds with science, I’d suggest you throw in your hat with science. The Catholic church does not have a good track record when it bets on metaphysics against science.

          You cannot, in good conscience, ignore millions of other-sexed individuals because they interfere with medieval metaphysics. They’re here. And they’re queerer than you can imagine.

      • Ted Seeber

        I would point out that the mere existence of no-fault divorce laws means that NO marriage, heterosexual or homosexual, is valid in the eyes of the state- it is dissoluble at a whim.

        • kenneth

          That goes back to what I said about the state not administering sacraments. A civil marriage is a contract, with particular obligations and exit clauses which are defined be legislative and judicial actions.

          • kenneth

            And not that I’m above a good SSM brawl, but how did the thread get on this anyway? The original story/hook has to do with a question of government neutrality toward religion. So far as I know, that case in no way involved gay marriage, just the issue of what role the state should have in picking and choosing who is considered “real” clergy.

          • If a civil marriage is merely a dissoluble contract, it would be better off not pretending to be marriage. Let two widowers a la the Odd Couple apply for their Property Sharing Agreement in their old age just the same as a young buck and his bride, but let’s not pretend the two relationships, which is what the state adjudicates, are identical.

      • In Washington State, where I live, the law currently on the books has established that civil domestic partners have exactly equal rights to married partners under the law. However, the legislature has recently passed a bill establishing marriage for same-sex partners, and converting those domestic partnerships into marriages. Why? It cannot be a matter of civil or legal rights. There must be something about the name “marriage” which is desirable.

        My question is, what is it that people actually desire? What can advocates for non-traditional marriage point to as the defining feature of marriage?

        If, as you suggest, it is merely a matter of contract law – why would I want to subject my sex life to a contract? Why am I inviting the government into my bedroom? And why would society tie so many privileges to making my sex life a matter of public contract?

        I know the answer that traditional marriage advocates give. I would like to understand how non-traditional marriage advocates answer these questions.

      • Giovanni Tardini

        I agree! Your bring it to the point. Civil marriage is redundant in a society where extramarital sex is not blamed, and where the childless are rather envied than pitied. This has nothing to do with equality. Every person, as individual, is equal before the law. But not all kind of relationships between men are equal. Some are even illegal, because they are about crimes or support criminal acts. Others are ok, but the state does not support them financially. If my associations supports (assume) abandoned dogs, the state might decide (or not) to help me with tax reduction or so. I cannot complain I do not receive the same amount of money than, say, the association of dead soldiers’ families. The state has to decide which kind of relationships have more perspective of contributing to the common good. A natural family is likely to have children and raise them (and one can make the tax reduction dependent on the amount of children, it has not to be an on/off matter). Of course it is not only about money. There might be adoption involved. There again the Law-makers can find that a natural family is in general a reasonable option for adopted children. Of course there are awful “natural families” where children would not grow up right, so a good State would double and triple-check every applicant family.
        There is nothing wrong in keeping the marriage the traditional way. This is not forbidding anybody else to live a different sexuality. The not-for-life one, or the homosexual, or the just-for-fun, or whatever. There’s hardly the need of marriage for every kind of union; civil marriage is just the form that looks more promising (as naturally fruitful and potentially ever-lasting) for the next generation to grow up, so it is a service to the common good. No more, and no less. Or do we need the state to bless us?

    • R.C.

      Yes, Robert, that is indeed the difficulty.

      The long-term future of a society comes about because of the number and success of its children.

      The sexual arousal of a man and the pregnancy of a woman, for the moment, produce children.

      (I hate to put it like that. But between in vitro fertilization and sperm donations and children of rape, I think we’ve pretty much stripped it down to those bare minimums.)

      The raising of a child in a stable two-parent home where the child is raised by their biological father and biological mother who are emotionally bonded to one another, ideally among biological siblings sharing that same situation, is the success-maximizing strategy for successful childrearing, all other things being equal.

      (I realize that some data are sketchy or sparse on certain aspects of that last assertion. But we can only operate on the basis of the best we know.)

      And, the state has a “legitimate interest” in perpetuating the long-term health and well-being of the society.

      These things being the case, it is a pretty straightforward that policies intended to strongly encourage two-biological-parent (long-term, committed) childrearing are constitutional and probably wise.

      To the extent that this arrangement is encouraged, alternative arrangements must be relatively discouraged up to but not exceeding the threshold of violating the inalienable (that is, natural) rights of those pursuing those alternative arrangements.

      I can see this being a valid justification for a system which gives large financial incentives (tax breaks, et cetera) for the traditional arrangement, and progressively fewer or no incentives for alternative arrangements.

      Under such a system, however, rights must not be violated even while incentives encourage one behavior over another.

      So, for example, one may not deny a citizen the right to cohabitate with another citizen. If there are tax breaks for cohabitators, then two men or two women cohabitating are entitled to them, whether they are sex partners, law partners, or tennis partners.

      Likewise, one may not deny a citizen the right to declare an heir or a power of attorney or to designate a non-biological-relative as next-of-kin. Indeed, a responsive government would streamline this process. Again, it is irrelevant whether the two people are sex partners, law partners, or tennis partners.

      (And it must remain irrelevant, for if sexual activity becomes a relevant feature, and the participants are of the same gender, then not only are privacy issues raised, but the legitimacy of the government’s involvement in setting policy with respect to non-procreative sex is eliminated: Without the possibility of children, there is no long-term impact on the society and thus no long-term legitimate state interest.)

      Finally, the rights of a human child must be considered.

      Now it just so happens, every human child has an inalienable (natural) human right…

      – to life, from conception until natural death
      – to know the identity of, to cohabitate with, and to be raised by their biological mother, and not on a part-time basis, either
      – to know the identity of, to cohabitate with, and to be raised by their biological father, and not on a part-time basis, either
      – to be raised in a family setting among their biological siblings if any

      Naturally tragedies happen, and the unexpected demise of a parent or sibling does not constitute a violation of a child’s rights.

      But should an adult opt through their own voluntary actions to deprive a child of these rights (say, through anonymous sperm donation, divorce, or conspiring to raise the child in a lesbian household) then that adult is committing a human rights violation voluntarily, and legal recourse ought to be an option for the child, through the actions of a Guardian Ad Litem if needed.


    • leahlibresco

      I did a bit about the why of civil marriage a bit ago (and now I see I used the same Count Olaf picture there, too).

      • Two questions come up, based on your earlier post.

        1) What is the difference between marriage and adoption? Both establish familial relationships between persons not (closely) related by blood.

        I can see at least two possible differences: first, sex is assumed to be involved with marriage, but not with adoptions; second, marriage is construed (at least in the West) as a union of equals, whereas adoption is usually construed as establishing a superior (parent) in authority over an inferior (child) – though I have heard at least figuratively of “adopting” brothers and sisters.

        This leads to…

        2) Why is society interested in establishing familial units?

        As inspiring as the idea of a long-term accountability partner is, I don’t see that as necessarily taking the exclusive form of couples in society; nor do I see society feeling a need to throw a ton of extra privileges to long-term accountability partners.

        Rather, the only reason I see society taking an interest in families – in defining the idea of a family at all – is for the sake of providing for the different generations. Children are supported by parents, then they become parents and support their children, and they also support their parents when their parents grow too old to support themselves. The family is the original social safety net.

        But a family that is not directed toward the various generations supporting one another – and by extension the community as a whole – does not seem to have any structural impact on society. In other words, I don’t see why the community (or its government) would enforce conventions or rules around a relationship based solely on the feelings and desires of two people toward one another.

        (As an aside, the law’s embrace of no-fault divorce undermines the “yoking yourself tightly to another” argument for marriage – and also implies that familial bonds really can be broken at will, rather than being lifelong whether we like it or not.)

        Which leads back to question 1) insofar as marriage only assumes sex because of the essential link between sex and procreation. So, while not every act of sexual intercourse results in a new child, acts which are anti-procreation seem to me to undermine the reason for marriage to be taken seriously as a social institution.

    • Mike Dennis

      “With no-fault divorce, the “till death do us part” is rendered meaningless. With few or no social stigmas for extramarital sexual activity, the benefit of social acceptance is nullified, and perhaps also the drama of romantic consummation. Without a normal expectation of children, the benefit to the community is minimized if not lost.”

      Hi Robert,
      I will take your question as a good-faith challenge for those of us who seek to expand the responsibilities and priveleges of marriage to “non-traditional” couplings. The problem is in the assumptions from the penultimate paragraph that I have quoted. I don’t agree that no-fault divorce “renders till death do us part meaningless”. It is an aspirational standard, a commitment that almost all marrying couples buy into even as we acknowledge the reality that half of us will fail to keep that vow. Marriage is an act that promotes the purpose of establishing and supporting lifelong commitments, not in every case, obviously, but much more effectively than does the absence of marriage.

      Nor do I agree that extra-marital sex carries little or no stigma. My social circle is comprised mostly of secular, high-achieving couples, and as far as I know, my friends maintain the same absolute standard of marital fidelity that my wife and I practice. Now I might be naive in my understanding of what they’re up to, but if so the reason I don’t know about their extra-marital activities is precisely because of the stigma that would attach to them. We liberals take our marriage vows pretty seriously, and expect that our friends do as well.

      I firmly believe that the societal and cultural support for values of commitment and fidelity in marriage, even when honored in the breach, are important enough to the culture that they should be propmoted and promulgated as widely as possible, even to “non-traditional” couples, including those “without normal expectation of children”. But that phrase belies a crucial fact: tens of thousands of children are being raised by these “non-traditional” parents. Whether they are children of prior heterosexual unions, adopted, or conceived by some other means, they are no less deserving than any other children of the benefits of a socially sanctioned family structure. What is the benefit to these children, or to the broader society, in denying their parents the right to marry?

  • Doragoon

    Religion has an answer for how it get’s it’s authority over people, and governments used to have to justify themselves to those religious authorities. Now that religions that are having to justify themselves to governments, are we really better off? What would have more effect on your life, if your government refused to acknowledge the moral authority of your religion, or if your religion refused to acknowledge the legislative authority of your government.

  • To quote Leah, “There’s no reason for the state to get muddled in the sacred side of things. Civil marriage and religious marriage are different institutions and ought to be treated as such. ” and again as she opines “…or to define exactly what a ‘church’ is. ”

    Leah get’s today’s gold star for insight and truth. The issue is, as she deduced, the government (and I’ll add the tolerant fringe) are in the business of redefining words to alter (altar?) meanings that extend back millennia compounded by the curious tradition of civil recognition of a sacramental act.

    Wonder when it became important for governments to recognize the legal relationship of a man and woman as significant. I presume it has something to do with children and property rights to land and chattel. But I digress… it this modern era the institution is under the microscope for any number of reasons. As a Catholic, I have my own set of views on the matter which are easily deduced.

    I’ve come to the position that the Church should withdraw from it’s service to the State in executing licenses of “marriage” when the Church clearly has a different definition of the word. Shut em down. You want to be married in the eyes of God and the Church, and live under the rules they’ve established… then a sacrament can take place and the Church can record the event and bless the couple. You want the State to provide you certain State benefits because of a union… go get an agent of the State to fill out your paperwork at the window.

    The State has no business in the Church. The Church has no business acting as agents of the State. This is not to say that the Church has no business influencing the actions of the State which is an entirely different issue.

    • Ted Seeber

      “Wonder when it became important for governments to recognize the legal relationship of a man and woman as significant. ”

      In English Common Law countries (49/50 states, and the 50th state is under Roman Civil Code instead, and guess what, it’s a Catholic state that recognizes the difference between sacramental and civil marriages), it started under Queen Elizabeth. She used it to spread Protestantism by keeping Catholics from getting married at all.

  • kenneth

    The state has NO business deciding whether a religion seems “real enough” based on the subjective (and clearly biased) opinion of some public sector mope. If the group in question has a distinct legal identity as a religious group and if particular persons hold a status that THAT religion considers to be ministerial (ie qualified to conduct marriages etc), that’s all the government needs to know or care about. Dominionist Christians have been playing this game with Wiccans and other minority religions forever, and they always, always lose in the end, because the law and tradition of this country is on our side. It just sucks that we have to keep fighting to claim the rights that generations have died to secure. Parasites like this Virginia clerk get to draw a nice government salary and pension while they spit on the sacrifices of those veterans and hijack their position of trust to enforce their own de-facto theocracies.

    • deiseach

      Hang on a minute there, Kenneth. “Parasites like this Virginia clerk” don’t get to make the rules, the people voted in to form the government (state or national) do that. The state (any state) requires that, for the civil contract to be legal, it should be certified by an authorised person. Ministers of religion are authorised persons – now, we can argue about should or shouldn’t they be, but that’s a separate argument.

      The clerk in Virginia was not saying that Wicca, or whatever tradition this woman organises under, is not a religion; he was trying to implement if they count as a ‘church’ under the definition in the law. And this is important, because I’m sure it’s very nice for the couple to have their friend act as the celebrant of their marriage, but if (God between us and all harm) the fairy dust wears off the marriage in five or ten or twenty years, and they go to court to split up the property and who gets custody of the kids and the arrangements for paying the mortgage – and people do go to court to get the state to settle their disputes under the law, regardless of what religion or no religion they follow – then it will be very important if the clerk made the right decision in permitting any stranger who just walked in and said “Oh, hi, I’m the High Priestess of the Coven of the Sparkly Rainbow Unicorns and I want to be certified to carry out weddings” really is or is not representative of a group that constitutes a religious assembly (as distinct from ‘four of us who meet in my living room once a month to share a few bottles of wine and a laugh’ or even ‘just pretending to be a religious figure for the purposes of this handfasting’).

      If the clerk permits someone who is not authorised to celebrate a marriage, that marriage will not be recognised as such by the state, and the people involved will have a lot more problems with the infinite paperwork of tax returns, bank accounts and the rest of civil life than having their feelings hurt that their best mate couldn’t stand there witnessing as they recited their own created vows.

      Kenneth, I’ve been that person standing at the window having to tell members of the public “I’m sorry, under the rules, no.” I don’t appreciate being called a parasite spitting on the sacrifices of others as I impose my theocracy on them.

      • kenneth

        I’m not at all convinced that clerk’s decision was firmly rooted in the law or that they even had a real understanding of it. It very much seemed to be an “off the cuff” decision that the person standing before them couldn’t be “real.” The clerk even said there were a “number of reasons” but could not or would not cite any but one.

        That one reason they did cite, even if it is rooted in state law, is blatantly unconstitutional if it is used a sole determinant or disqualifier of whether a religion and clergy is bona fide. There is absolutely no legitimate reason a government could have for denying clerical status for lack of a permanent church building. The ONLY tests a government may apply, as they are by the IRS, are standards that are content-neutral. That is to say, they can apply some standards designed to determine whether the religion at hand is really an organized movement with discernible beliefs vs some guy declaring himself the Pope of beer drinking to get a tax exemption.

        The only legitimate tests are to determine whether or not the belief system is treated as a religion by its adherents. Can they articulate some theology and practices? Do they look to it to answer the big questions of life and death etc? Wicca passes that test with flying colors. There is legal precedent for its status as a religion with the IRS/military etc going back at least to the 1970s. Covens are very often incorporated as churches under state law and often obtain federal tax exempt status as well. I believe this was the case in this Virginia story, though I could be mistaken. I am also not convinced this clerk’s decision was rooted in state law for another reason: I have heard that plenty of Wiccan clergy HAVE been registered by courts in other jurisdictions in that state with no problem. This smells of ignorance at best, and bigotry at worst, and if they don’t correct it, I hope the ACLU eats their lunch for it.

        • Absolutely no legitimate reason? None? Brave words for someone who by his own admission doesn’t know all the facts.

          Not that I know all the facts either. You could be right, for all I know. But such confidence smacks of the worst kind of knee-jerk blind faith rather than a sober assessment of the known issues.

    • deiseach

      Kenneth, I would just point out that it cuts both ways: the minister or celebrant or officiant, when acting to certify the marriage on behalf of the state, is acting as a representative of the state – as pointed out above – and so is stating that there is no impediment to the marriage. So Literata Hurley above would be guaranteeing that the persons wanting to get married are legally (civil law, not church law) free to marry; that is, of age, not already married (or if previously married, that was dissolved according to the law of the land) and not under duress.

      Which is why the clerk has to be sure this person wishing to solemnise a marriage knows what their duties is. and someone doing it for the first time may not know all the ropes (seeing as how this is her first time applying to officiate at a wedding, this seems like her first time doing the paperwork as well). And if there is any question about the legality of the marriage afterwards, it’s a lot easier to call in Reverend Smith from the First Adoptionist Church of the Redeemer on Main Street to answer questions than a representative of the Atlantean Wisdom Guild, which is based out of state and hasn’t an identifiable building or address in this town as a place of business, and you don’t know whose house the wedding took place in, and nobody can be identified as having ultimate responsibility.

      • kenneth

        I have no problem with making sure clergy are aware of their duties under the law. I wouldn’t even object to some small training requirement if it was applied across the board. An arbitrary decision that Wiccans must not be up to snuff and that ministers of traditional denominations are, is not acceptable.

        • Again: Arbitrary? You must have either read up on the issue more than Leah presented or you must be reading into the issue more than Leah presented. You are absolutely sure these results do not spring from some other common cause?

          In conflicts between government employees and citizens, sometimes government employees are in the right. Bureaucracies are at least as complicated as the law allows, and little more complicated than the laws require. Whether the law is in the right is a separate issue, and you seem to be conflating the two.

          Not trying to be pendantic. Sorry if this is.

        • deiseach

          And where did the clerk say anything about Wiccans in particular? It seems that the objection was primarily because there was no official building or place where the church (for want of a better term) she claimed to be an officiant of conducted services or were physically locatable.

          It happens to Christians too; there are ‘house churches’ where people gather together in one another’s homes to do Bible readings and have prayer services. I can’t find the link immediately, but a year or so ago there was a complaint brought by the neighbours against a couple running one such, on the grounds that the numbers of cars parked on private property and noise pollution from the loud singing (and I think preaching as well) were disruptive. Court ruled that this wasn’t a church, it was a private house, and they hadn’t a licence to carry on this kind of thing, so they could stop it.

          And I see by Virginian law, there are a couple of ways to get licensed to officiate at marriages:

          20-23. Order authorizing ministers to perform ceremony.

          When a minister of any religious denomination shall produce before the circuit court of any county or city in this Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he holds a local minister’s license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in this Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof.

          (Code 1919, §§ 5079, 5080; 1962, c. 362; 1980, c. 154; 1981, c. 295.)

          § 20-25. Persons other than ministers who may perform rites.

          Any circuit court judge may issue an order authorizing one or more persons, resident in the circuit in which the judge sits, to celebrate the rites of marriage in the Commonwealth. Any person so authorized shall, before acting, enter into bond in the penalty of $500, with or without surety, as the court may direct. Any order made under this section may be rescinded at any time.

          Any judge or justice of a court of record, any judge of a district court or any retired judge or justice of the Commonwealth or any active, senior or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization.

          (Code 1919, § 5080; 1938, c. 152; 1981, c. 295; 1981, Sp. Sess., c. 15; 1983, c. 64; 1985, c. 195; 1987, c. 149; 2003, c. 228; 2004, cc. 612, 680.)

          § 20-26. Marriage between members of religious society having no minister.

          Marriages between persons belonging to any religious society which has no ordained minister, may be solemnized by the persons and in the manner prescribed by and practiced in any such society. One person chosen by the society shall be responsible for completing the certification of marriage in the same manner as a minister or other person authorized to perform marriages; such person chosen by the society for this purpose shall be required to execute a bond in the penalty of $500, with surety.

          So if this is a once-off, our Wiccan minister can pony up a bond of $500 and the state of Virginia will be happy to let her celebrate the ceremonies. I can see the question if this is not a once-off and she wants to officiate other marriages in future, but that is for her to get onto her local councillors or representatives and ask them to amend or clarify the law, not expect a clerk to do so – you really have no idea how rule-bound people are in civil service employment, even when they want to give people the benefit of the doubt.

          And why does the state involve itself in deciding who can and who can’t officiate at a marriage? Because of things like this:

          20-27. Fee for celebrating marriage.

          Any person authorized under § 20-25 to celebrate the rites of marriage shall be permitted to charge the parties a fee for the ceremony not to exceed $50 for each ceremony. Additionally, such person shall be permitted to charge the parties travel expenses to and from the marriage site. If conveyance is by public transportation, reimbursement shall be at the actual cost thereof. If conveyance is by private transportation, reimbursement shall be at the rate specified in the current general appropriations act of the Commonwealth. In either event, the actual cost of the ceremony together with travel expenses shall be given to the parties at least three days prior to the marriage ceremony.

          (Code 1919, § 5083; 1970, c. 362; 1975, c. 644; 1993, cc. 941, 966; 2006, c. 625.)

          Suppose any chancer tells people “Oh yeah, I’m a licensed minister, I can officiate at your wedding – that’ll be $200 please.” Great, fine, super. Then it comes time to find out if you really have been registered as married, and you find out that Minister Bob is no such a thing and has taken your money for nothing.

          The reason the state is involved is not to judge what is and is not a proper religion; it’s to protect people who want to get married outside of having the civil ceremony of registration. If you’re serious about the state getting out of the marriage business, why not tell Ms. Hurley and her friends “Hey, go along and have your marriage registered civilly, then have whatever private religious ceremony you want yourselves”?

          Six of one, half a dozen of the other.

          • “The reason the state is involved is not to judge what is and is not a proper religion; it’s to protect people who want to get married outside of having the civil ceremony of registration.” Which is a completely inappropriate reason. Think about that logic for a minute: you’re saying that the state is getting involved in weddings that take place outside the state’s jurisdiction…precisely because they take place outside the state’s jurisdiction? That boils down to, “The state isn’t involved in that, therefore the state has a right (or obligation) to become involved in that.” Is that really an argument you want to make?

          • kenneth

            That all just boils down to a sleazy and back-handed way of a state enforcing what it thinks is “proper” religion. There is no special problem of “fly by night” ministers that cannot by handled by existing fraud statutes in all 50 states.

          • deiseach

            Delphi, what I am saying is that when marriages or cohabitation or adoption or ‘I left my spouse for my new lover’ break down or go wrong, people do expect the state to rule on their disputes through the courts.

            It’s great to say “Let everyone make whatever kind of arrangement they like, and the state stay out of it”, but the reason (for example) we have single parent payments or the status of illegitimacy was overturned is because when things go south, and particularly when children are involved, then the state has a duty to its citizens.

            The reason the state gets – and got – involved in marriage certification was exactly because there was confusion over who was and was not married. Jack and Jill have lived together for twenty years and have six kids; they never married; Jack dies. Who gets his estate? Or pension rights? Or the family house? His partner and children, or his parents and siblings?

            Jack Tar is a merry sailor lad with a girl in every port. He has also gone through a form of marriage with the girl in every port. Who is his real wife, if any?

            Pinkerton takes a fancy to Butterfly and marries her in a Buddhist ceremony. As far as Buttterfly, her uncle, and her society are concerned, she’s legally and morally his wife. As far as he’s concerned, he’s just shacking up with a cute babe until it’s time to go home and get properly married. Who is he really married to – Butterfly or his new American wife?

            Joe is a commercial traveller. He has a wife in Manchester and another wife in Stockport and he’s engaged to a lovely girl he met in Blackpool. Are they all his wives or not?

            The many folksongs where the girl laments “You swore you’re marry me/When you lay beside me” and the man replies “If I said that/It was only in jest/So bring your witness/And sure, I’ll marry you then”.

            The state got involved because the public involved it. Disputes over property, disputes over legitimacy, disputes over inheritance, disputes over was Jim previously married or was that only a trial ceremony and what about Sally and her six husbands – three of them were jumping the broom, does that count?

            The state getting out of the marriage business means no laws about child support. No laws about desertion. No laws about bigamy or polygamy. No laws about property division in divorce. No divorce, because the state does not recognise or regulate marriages. No preferential treatment for spouses over blood relations. No tax breaks for married versus single. All this applies to unmarried but cohabiting couples as well, by the way, because your private domestic relationships are your own affair and whether or not you go through a ceremony of commitment has nothing to do with the state.

  • Ted Seeber

    “There’s no reason for the state to get muddled in the sacred side of things. Civil marriage and religious marriage are different institutions and ought to be treated as such.”

    I tried to tell a Basic Rights Oregon Activist that, and they called me a bigot who wants to deny marriage to gays.

    Oddly enough, I tried to tell a RadTrad Catholic the same thing- and they called me a bigot who wants to tear down the family.

    I would say, from those two reactions, that this is exactly the right read under the First Amendment to the Constitution.

  • kenneth

    To the original point of this thread, it bears noting that Virginia has a deep-seated ancient tradition of hostility to religious tolerance. In colonial times, they required a “license to preach”! In theory, outfits besides the official Anglican Church could get such a license, but then, as now, officials found clever ways to rig the game. One of the requirements was….drumroll……a requirement to have a permanent church building! The very same “gotcha” used against the Wiccan recently. In the old days, the requirement was used to screw Baptists, who had itinerant preachers who traveled around doing outdoor revivals etc. Baptists were, for a long time, very ardent supporters of separation of church and state, something I love to point out to today’s evangelicals, who dismiss the idea as a recent invention by the godless ACLU and leftist radicals. There’s part of the Virginia civil spirit that never really got on board with the First Amendment.

    • Some interesting regional history there, thanks for sharing that.

  • BenYachov

    I believe Vox Day has floated a similar view. In the beginning of the American Republic wedding records where fount in churches not in court houses or town halls. Maybe the state should get out of the marriage racket and make everything a civil union?

    • kenneth

      They absolutely should make all civil marriage civil unions. That’s all they have legitimately been since the day the Constitution was signed. You’re correct of course in pointing out the historical reasons state and church legalities became conflated. From the time Christianity took over Europe until the Enlightenment, state and religious authority were completely intertwined. That is no longer the case in Western democracies and especially in this country, and that ought to be clearly recognized in law.

      • Was that before or after France, England, Germany, et al., bullied bishoprics into submission and snagged abbot appointments for their cronies at the expense of the Church? Because that was pretty much throughout Church history; I don’t know that you’d really be able to narrow this down.

        You see, intertwined is a poor word. It implies a kind of parity. The Church pretty much always got short shrift in organizational, bureaucratic disputes. If there was ever a marriage between State and the Church, it was an abusive marriage.

        • kenneth

          The Church had the upper hand its share of the time too. It was the largest landowner in Europe. It’s clergy were absolutely exempt from civil prosecution. Bishops and popes had their own armies. They had huge say over the financial interests and even the survival of monarchs. Henry IV, Holy Roman Emperor, basically the king of the western world in those days, was reduced to standing outside in the snow for three days begging a pope to lift his sentence of excommunication over a spat they had. The Church was not the wilting flower we might suppose.

          • And these resources were used aggressively against the State? As a matter of fact, every single one of these examples — and the Inquisition, for that matter — was a defensive protection for someone from the coercive power of an overzealous State. (Yes, even the excommunication, which was for the very same “investiture” issue mentioned in the comment above.)

            Nobody ever said the Church is a wilting flower. That much abuse tends to toughen you.

  • Ron K

    Well, it all sounds well and good in theory. In practice, religious institutions exist inside states and are (at least nominally) under their jurisdictions, while most religious adherents believe that the values of their religious organisation trump the values of the state every day of the week, and twice on a sunday. This case of loyalty to two sets of rules can, and often does, lead to collisions.

    What that means practically in the U.S., as far as I understand, is that the state grants religious institutions a de facto exemption from its jurisdiction – the stronger and more historically or demographically influential the religious group, the wider and more far-fetching the exemption.

    Smaller religious groups just get exempted from being financialy scrutinised or taxed. Larger religious groups get active financial support while being allowed to deny constitutional rights. Religious-based childcare systems are exempt from state standards. In some cases, people are even being exempted from prosecution on what I’d consider neglect (denying medical care from children) or outright child-abuse (cutting a baby’s penis) on religious grounds.

    The really interesting question is, whether you think that the state is justified in letting religious institutions have this extrajudicial status in the name of the ‘Freedom of Religion’?

    • kenneth

      No one should have extrajudicial status, not religious groups large or small. The fact that some have attained that status and gotten accustomed to their status is an error that needs correcting wherever it is found. We give religion a high degree of protection from arbitrary intrusion by the government because we believe its a pretty important component of the whole “life liberty and pursuit of happiness” deal. It was never meant to be an absolute right, as many dominionists and conservative Christians seem to favor. In their concept of it, invoking religion creates a magical force field such that government can no longer regulate anything even tangentially related to one’s religious beliefs. They generally believe that extrajudicial status should only accrue to THEIR religion, of course. It’s an absurd and utterly unworkable construction of rights…

      • Ron K

        Yes, I agree with you in principle.

        But in practice, if I understand U.S. demographics correctly, revoking the licence of Catholic OB/GYNs and Pharmacists that refuse to provide contraceptives or abortion sevices, stopping the support for Catholic adoption agencies that discriminate against same-sex couples, enfocring childcare and scientific education standards for Evangelicals and homeschoolers, or having a court ruiling declaring Jewish and Muslim ritual circumcision illegal (like the one they had in Cologne, Germany lately) is tantamount to political suicide at best, if not leading to another civil war.

        Do you really think it’s worth it? Isn’t compromise better than two sides, each holding a different moral system, fighting it until one ‘wins’?

        • R.C.

          I would certainly hope it would lead to another civil war.

          Not that war isn’t horrifying. But some things are worse.

          (“When in the course of human events…”)

      • R.C.

        Well, one has a choice.

        One can either govern in a very libertarian fashion, such that the government doesn’t exercise force to do anything much that a religious organization might disagree with; or, one can exercise that force to create a welfare state, but then, to maintain liberty, carve out exemptions for conscientious objectors.

        I say “conscientious objectors” rather than “religious groups” because whether the conscience in any given case is informed by…

        (a.) something popularly recognized as a religion (e.g. Catholicism); or,

        (b.) some other integrated life-philosophy involving a cosmology, an anthropology, a metaphysics, an epistemology, an ethics, some helpful habits, and an approach to life’s challenges (which is to say: a religion, even if it isn’t supernaturalist, popularly called a religion, or is confined to a single practitioner)…

        …either way, the emphasis ought to be on “religious FREEDOM,” not on “RELIGIOUS freedom.”

        Oh, by the way, keep in mind that serious “dominionists” in the secularist bugbear sense are about as rare as hen’s teeth, and like snake-handlers, as soon as they exit their isolated enclaves they tend to be taken, uh, less than seriously by their fellow Christians. Yes, even by evangelicals and fundamentalists (very few of whom had heard of the term “dominionist” until it became a secularist bugbear, in fact). The dominionist approach is made to seem more prevalent than it actually is by interpreting unrelated phrases and terms as indicative of crypto-dominionism, either from misunderstanding, or for the same reason that kids tell ghost stories at sleepovers.

      • Government has the authority to regulate behavior, specifically behavior that impacts the common good of society.

        Government has no authority to regulate belief.

  • As much as possible, the state shouldn’t create laws that will ask them to adjudicate theological questions.

    That the state would have the gall to define the nature of a “religious organization” is at the heart of the HHS dispute. (But such issues will come when your country gets founded on the ruins of magisterial Protestantism.)

    • anodognosic

      Well, given that religious institutions claim tax-exempt status, it’s unavoidable that the state will have to define the nature of a religious organization, or I’m about to become high priest of the church of Anodognosic Doesn’t Have to Pay Any Taxes.

      Of course, some might say that it’s religious institutions who have the gall to take federal money with one hand while they impose their sectarian doctrine on their employees with the other.

      • Being tax exempt isn’t taking federal money. (But your point regarding definitions is well-taken.)

        • (And, for the record, if were merely a matter of us having our druthers, I wouldn’t mind at all relinquishing tax-exempt status. Except what goes in the collection plate is a gift and gifts should be tax-exempt. Except that the Church provides is a vital public service. Except that the money used by the Church gets used to feed the homeless, &c. Because it ain’t about us, the tax-exemption should stay.)

          • All I ask for is a consistent standard for taxing and tax-exemption. If there are any exemptions from taxation for non-profit status, religious organizations should be included in that exemption. If religious organizations are to lose tax-exemption, so should all non-profits.

          • Ron K

            Well, if you want a consistent standard, do you think that churches should be obliged to publicly disclose their finances, and to file reports showing that a certain minimum percentage of their money goes to their stated goals? After all, non-profits have to.

          • @Ron –

            I’m no tax lawyer, but I thought the 990s of all non-profits, religious institutions (“churches”) included, were a matter of public record, available for the asking.

            I’m not sure what the current legal requirements are for organizations’ books themselves, but I don’t see why any public corporation (for-profit or non-profit) should be able to keep their books secret.

            On the other hand, I don’t see a problem with a non-profit charitable institution – religious or not – having a certain “discretionary fund” for charitable works. There are times when privacy and confidentiality are part of the charity itself. (E.g., people who need help with medical bills, but whose condition, if publicly known, would jeopardize job prospects.) I could understand if, say, a court order were required to see the accounting for such a discretionary fund.

            In any case, I’m always in favor of simplicity and consistency in legal matters.

          • Sure. Why not?

          • Mr. King’s comment wasn’t there when I first replied, and he brings up good points regarding confidentiality. Still, confidentiality is not across-the-board.

          • Ron K

            @Robert King
            FYI, According to this IRS document, Churches (as opposed to other ‘religious institutions’) are exempt from even filing a 990, on income that is not deemed from an ‘unrelated business’.

   page 22

          • @Ron K –

            Interesting. I wonder what the original reasoning was behind that. I don’t see a compelling reason for it today.

  • With the state of affairs the way it is now, with what I know of the facts (from reading the post on Patheos and reading her linked blog), the clerk in Virginia acted improperly. That, to me, is the immediate issue of importance. I would rather support the Wiccan priestess first and argue about church and state afterwards, than let the discrimination against her pass so that we can focus on larger questions now.

    I am very concerned about discrimination on religious grounds, and am headed over there to offer any support I can. They asked for specifically Pagan letter-writers, but if they’re interested in inter-faith support, I am happy to offer it!

    For the record, I agree entirely about the muddling of church and state. The presiding clerk of any Quaker meeting is licensed (in all 50 states) to sign marriage certificates, but Rob and I saw a Justice of the Peace for a civil ceremony (just Rob, me, and the JP in a local public garden; we signed the certificate on the tailgate of Rob’s truck!) entirely separate from our Quaker marriage a few days later. The latter was the real marriage to both of us. I liked keeping them separate.

  • John

    “As much as possible, the state shouldn’t create laws that will ask them to adjudicate theological questions.”

    It is completely impossible for the state to create a law– any law– without adjudicating theological questions. Where do you think lawfulness comes from? (Hint: we already have a good idea!)

    For example, a lot of laws are based on the dignity of humans. Whence this dignity? The snake oil of mere convention, or the solid truth of the Imago Dei?

    This whole business of “separation of church and state” can only be made sense of if we define it as “separation of revealed and natural religion.” That is what it is, and we’ll make a mess of it until we face facts.

    • Ron K

      That may or may not be good theology. It’s really bad political science.

      This reminds me of an Evangelical I’ve once heared claiming, with all seriousness, that if everybody just accepted Jesus into their hearts, there would be no need for laws, because everybody would just behave rightsouly. That’s akin to saying: “well, if everybody just agreed with me, we wouldn’t be fighting all the time”. Similarly, if everybody just accepted natural law theology, politics would be easy.

      Unfortunately (or fortunately), life is more complicated. As I assume you know, a large amount of very rational people do not accept your theology. They still have to find laws reasonable according to THEIR system of thought, which might be very different from yours.

      The goal of America’s founders was, to allow the Catholics of Rhode Island and the Puritains of New England and the Quakers of Pennsilvania to live according to the same set of laws without resorting to imposing a state religion. Indeed, without even posing common values – just enough structure so that everybody can function together. That’s the goal of politics — to get to a compromise between different worldviews. In order to get to that compromise it is essential that government not even phrase its laws in a way giving a hint of a certain theology.

      • Doragoon

        We’re asking what’s the proper role of government in this issue. How about we discuss what the proper role of religion is? Or rather, How has government come to fill the role of a religion in people’s lives? Aside from taking a stance on the existence of a higher power or afterlife (which not every religion does) what might be a role for religion that doesn’t intersect with a duty the government has taken upon itself?

        • Ron K

          I’m not a religious person myself, but in my understanding, people join religions to advance their own spiritual, moral and personal development, and to be a part of a community that, in their mind, is a force for good in the world.

          Religion, and a worldview in general, might help one define the most righteous way to live one’s life. Government does nothing of the sort. Religions might define good and evil, virtue and sin. Governments decide about what’s legal and illegal. There’s a world of difference, and I can find examples of all possible combinations (legal & moral, legal & amoral, legal & immoral, etc.).

          The difficulty of some religions (and, admitedly, some liberals) to adapt to living in a multicultural society, is that they have no theological concept of non-adherents, they just assume they’re obviously right. That leads to conflicts with with people with differing worldviews, with the state as the battleground.

          What role of religion do you think was filled by government? am I missing something here?

          • Interesting perspective. From my experience, most people join religions for one or more of three reasons: 1) the reason you stated: for communal support in improving both oneself and the world; 2) the religion presents a worldview that they are convinced is true; 3) it establishes a safe environment to feel good about oneself (whether in healthy or unhealthy ways).

            Not to speak for anyone else: I don’t see that government or law should fulfill any role of religion. However, in a pluralistic society such as the U.S. in the 21st century, the law does have to mediate between various religious institutions, officials, and individual adherents.

            Moreover, while most religions have some sort of marriage ceremony, the institution of marriage has historically been held to have universal social implications. Hence, various governments have established laws, or adjudicated cases, touching on marriage. If one grants that the state has any right to regulate marriage at all, then it will have to agree with the various religions on who is a legitimate officiant of marriage.

            And, as others have said, it should be fair and consistent about its standards for recognizing religious officiants of marriage.

            Drawing a hard line between civil unions and sacred marriages would simplify this; but it might raise other problems down the line.

          • Ron K

            Or, alternatively, it could simply require that all marriages be civil and conducted through civil authorities, allowing anyone to conduct whatever ceremony they please afterward.

            That’s the way it’s done here in Germany. It seems to work and I haven’t heard any complaints from either religious people or secularists.

      • John

        “That’s the goal of politics — to get to a compromise between different worldviews.”

        Nope. We do not consider our political system broken if it rejects and condemns a worldview, rather than compromising with it, as long as that worldview is Wrong. If you doubt that statement, just stop and consider some of the worldviews that have come along in the history of mankind.

        Our current culture is on the verge of rejecting a worldview (the non-contraceptive one), only this rejection is not coming from a conviction that this worldview is Wrong, but only (really!) from a conviction that it is Unpopular.

        The goal of politics is truth, not consensus. This makes sense since the goal of an individual is truth, not self-assertion, and the body politic is just a collection of individuals.

        • The goal of politics is truth …

          If only.

        • The goal of politics is the common good. Truth, properly speaking, is the goal of science (taken in the broad ancient sense of the entire quest for knowledge). Consensus is one part of the common good, that often is reached by compromise, but it is only one part – and not always a necessary part.

          However, when the common good is not obviously clear, compromise and consensus are often the necessary means to making decisions for the community.

        • Ron K

          John, I’m sorry to say that this sort of rhetoric is exactly what I meant when I said, that some religions have a problem with living in a multicultural society.

          Nobody is telling you to change your moral beliefs. Nobody is demanding that any church officiate in a marriage that they morally object to (be it same-sex marriage, re-marriage or even interracial marriage). Nobody is demanding anyone to believe anything different, or act against their own moral code.

          The case here is a purely legal one, not a moral one, and should be answered with legal reasoning. Legality, as I mentioned earlier, has nothing to do with morality. That is the reason that the simple legal argument of equality before the law trumps any moral argument.

          Opponents of same-sex marriage that I have heared cite a plethora of moral arguments without understanding this. Even worse, they are attempting to force people to act in what they consider to be a righteous way, forgetting that once they cross this line, nothing prevents others from crossing it and actually forcing THEM to act in a way another value system considers righteous (revoking licences of OB/GYNs that refuse to prescribe contraception, for example).

          • Legality has nothing to do with morality?

            Perhaps we have different understandings of morality and/or of law.

            I have always understood morality to be the science of good and evil in rational behavior. Morality asks (and seeks answers to) the question, How do we recognize and do what is good, avoid what is evil, and understand the effects our actions have on us and others.

            I have taken civil law as the expression or implementation of morality in a community. That is, it prescribes certain behaviors, proscribes others, and enforces these commands with rewards and punishments. It chooses which behaviors to command or forbid or ignore based on an understanding of morality.

            How do you understand morality, law, and their relationship?

          • Ron K

            We have a different understanding of both, I’m afraid.

            Morality deals with how people should act. Since it is impossible to learn this from experience, due to the naturalistic fallacy, it can never be a science, or even be knowledge. A moral dialogue can only happen between two people who accept the same moral premises (what I call a worldview). If they don’t, no amount of evidence, logic or arguing can legitimately prove one side or the other, and is therefore in my opinion, futile.

            Early in our history, states, knigs and chiefs had arbitrary control over people. They were the only ones allowed to kill, steal etc., without being punished, while punishing others. They provided a limited amount of protection, that was better than none. Still, arbitrary application of power meant, that one was never safe from the wrath of the king.

            This situation wasn’t so stable. Since people didn’t like being treated unfairly, grudges and revolutions came soon after. The idea of the rule of Law is a way to justify and rationalise the state’s inherent violence, while limiting its arbitraryness and therefore stabilising it.

            I agree that laws should be compatible with the morality of most of the population — its goal, after all, is to increase social stability. People don’t seem to react well to laws they feel impose a behaviour they deem immoral. That is also why I think that in a society with several competing worldviews, the best legal policy is to try not to make any side angry by legislating the other side’s moral values.

  • deiseach

    I realise I am coming across as being ranty about this, but as a former Clerical Officer (Grade III), I do feel offended when people immediately jump to the conclusion that this is private prejudice by the Clerk of the Court in denying the Wiccan minister the recognition to officiate at weddings.

    Now, if this is prejudice against a minority religion, I say go ahead and good luck, Ms. Hurley, in getting your rights. I am not defending discrimination against any group on the basis of their beliefs. But we don’t know that is what is at work here, and until we do, let us not refer to public servants who deal on a face-to-face basis with the public as parasites, please?

    I can see why the lack of a permanent or official building would be a hindrance. If Ms. Hurley is going to officiate at weddings and other ceremonies on a regular basis, then she is going to have to keep records, and she is going to have to have somewhere to keep them. Suppose she works out of her home and keeps them in her office? Fine, but does she have a permit for that? Because there are a host of other matters, such as public liability insurance, involved in running a church or any kind of organisation (schools have the same problems). Say she has someone over to perform a ritual for them, and that person slips on the floor and falls and breaks their arm. Does Ms. Hurley’s insurance cover her for this? It may not do so, if her insurance company contends she was running a business and not acting as a private homeowner.

    And before you say “But my good friend Mary would never sue me for a fall in my house!” – don’t be so sure. People are increasingly litigious, and where medical expenses, time off work, etc. are involved, they may well decide to take a claim out against you. Now imagine this happens in someone else’s house, where they are having a ritual as Ms. Hurley describes (“I said yes, we meet in each other’s homes, or out of doors”). Who’s liable there? The owner of the house where the accident happened? Ms. Hurley, in her capacity as minister to a congregation of religion? You see the complications?

    After all, it’s very easy for anyone to call themselves Minister Bob or Reverend Sally, but when they disappear into thin air after taking their congregation for a ride, then we get the angry demands from the public that “Someone should do something about this!” and that is why laws get passed where the state makes restrictions.

    • I don’t think that your objections such as needing a building and a permit (?) to keep records are pertinent in this case. She is not applying to the state for permission to run a church, she is officiating at a wedding. Ship captains don’t have buildings and they’re allowed to officiate.

      By your reasoning, the early Christians — who met in people’s homes and most assuredly did not keep records for fear of persecution — wouldn’t have been allowed to perform weddings. I’m pretty sure that the building isn’t the point…

      • deiseach

        Delphi, she is asking to be recognised by the state of Virginia as a registrar of marriage, and the law of Virginia puts qualifications to be met for that office. Otherwise, the bride could just get her mother to sign the form and stick it in the post.

        Where Ms. Hurley seems to have fallen down is on the requirement of proof of an active congregation. She has her certificate of ordination, she has the 501(c) thingamajig for the Order she is a member of – she just has to provide evidence that yes, I am a minister of an active congregation, and this is where we meet or where I stow my athame or what you like.

        If she is getting tax exemption as a minister, I’m pretty sure she had to provide evidence that she was ordained and working as such (and not in the ‘do it over the Internet and never hold a service in your life’ manner).

    • kenneth

      There is NO reasonable state interest that justifies a requirement of a congregation having a building in order to recognize their clerical functions. If the underlying concern is “is this person for real”? That can be established very easily by the religious group itself. Most of them are chartered and incorporated some way. Church buildings only become an issue when you hold services with large numbers of people that lead to parking and traffic issues etc. That’s a zoning issue, and one that has to be handled carefully under federal Religious Freedom Restoration Act.

      And yes, my gut tells me its bigotry. I could be wrong, but there’s a very deep and very recent history of this sort of thing in the Bible Belt, and elsewhere. It took us over a decade and several lawsuits just to secure the right to have our own dead honored properly with our religious symbol in veterans cemeteries. That too featured a lot of pea-and-shell games about procedures and rules that nobody could quite cite in full….

      • There is NO reasonable state interest that justifies a requirement of a congregation having a building

        So you’ve said, again and again, yet you’re never quite responding to the several reasons being provided by deiseach, who herself only seems interested in giving the state law a fair shake. (Her rhetorical position seems to be: Assuming state involvement in marriages, here are potential problems for which weirdo Virginia law solves.)

        • kenneth

          I don’t deny that someone can come up with justifications for an onerous law. That’s an ancient art form and no doubt one that Virginia will practice with flourish if sued on this matter. One can always posit some public interest as a justification for violating fundamental rights. The “poll tax” and accompanying grandfather clauses had such justifications, as did “separate but equal” schooling. That doesn’t mean such justifications will withstand any reasonable scrutiny in the light of what the Constitution says our country is about.

  • “There’s no reason for the state to get muddled in the sacred side of things. Civil marriage and religious marriage are different institutions and ought to be treated as such. ”

    Yes, yes, yes, yes, yes. I actually did not know that one needed any state’s permission to officiate at weddings, and I’m pretty horrified to discover this. I thought the only time the state got involved in the ritual part was when you were married by a Justice of the Peace. This seems like a totally inappropriate mixing of Church and State — whoever is getting married should be allowed to have whoever they want officiate for the spiritual/ritual bit; all the state should care about is the legal bit, did they sign the license.

    Does this meddling go the other way? That is, suppose you get married, complete with marriage license, and then later find out the person who officiated at your wedding wasn’t properly ordained; is the state going to come around and seize your marriage license on the grounds that you’re not really married? I seriously doubt it, in which case the state’s approval of officiants is completely moot.

    That said, IF the state is going to meddle, they should meddle evenly and fairly, not using some ridiculously subjective standard like “at the clerk’s discretion.” This seems like a textbook example of discrimination — I’m pretty sure she’d win a lawsuit handily. I wonder if the clerk knows that the military has recognized paganism as a religion, and that the pagan symbol is allowed on headstones in Arlington Nat’l Cemetery, right there in his very own city?

    • deiseach

      Delphi, the point is that whomever registers the marriage must do so within sixty days of the happy couple getting the marriage licence, otherwise it will lapse and they’ll either have to prove they went ahead with a ceremony or take out another licence.

      As far as this case goes, Ms. Hurley can handfast the pair of ’em with bells on, and the State of Virginia will not say is, aye or nay about it as a religious ceremony. They can (a) have the civil registration part at a registry office or whatever the equivalent is in Virginia and get her to officiate at the spiritual ceremony (b) as the law, which I quoted in a comment above says, Ms. Hurley can take out a $500 bond to as guarantee to perform as a registrar of the marriage.

      This is not a question of “Does Virginia recognise Wicca as a religion?” It may be a question of a county clerk being prejudiced, or it may be a question of the poor fecker having to follow the blinkin’ rules. Again, I quote:

      “Who May Perform a Marriage Ceremony?

      The clergy, minister or other person performing the marriage must be authorized by a Circuit Court of this Commonwealth to celebrate the rites of matrimony.

      The clergy, minister or other person officiating at the marriage ceremony must complete and sign both forms of marriage license and forward both forms to the Clerk of the Court who issued the license within 5 days after the ceremony is performed.

      A commemorative certificate of marriage may be prepared by the officiant and given to the newly wedded couple upon request.

      Qualifications of Minister to Perform Marriages in Virginia
      1.Clergy must have an active congregation.
      2.Congregation must be recognized as tax-exempt under 501(c)(3) of the United States Code.
      3.Celebrant must appear in person between the hours of 8 A.M. and 3:30 P.M., Monday through Friday, with the following: ◦Proof of #1 and #2 above.
      ◦Certificate of Ordination and identification.
      ◦Payment of $29.00 by cash or credit card (Mastercard and Visa only; a service charge of four (4) percent of the amount paid will be collected on credit card payments).

      4.When #3 above has been completed the celebrant can perform a marriage ceremony anywhere in the Commonwealth of Virginia. The certification is valid for life.”

      Now, according to Ms. Hurley (in the quote Leah provided) her proof that she is an ordained minister of the Order of the White Moon is that she turned up with “my certificate of ordination and documentation of the 501c3 status of the Order of the White Moon” – which is based in California, a whole different state, which probably has some bearing on the matter.

      When asked about proof of an active congregation, all she had to offer was that they met in each other’s houses. Look, under Catholic theology, the couple are the ministers of the sacrament. I could act as the witness to a sacramentally valid marriage for friends of mine (should anyone be crazy enough to ask me) and that would be great – but I would not be recognised as a minister of religion by the State of Virginia, and unless the argument is going to swing around to Virginia not recognising Roman Catholicism as a religion, I think you will have to go this far that we do not know this is about religious discrimination instead of over-zealous interpretation of rules.

      My sister and brother-in-law have two wedding anniversaries: the anniversary of their civil marriage, when they went to the registry office and did all the paperwork and had the state-recognised marriage, and the anniversary of the religious ceremony of blessing performed by a Christian Community (mix of Lutheranism and Anthroposophy) minister in the Steiner centre where they were living and working at the time. This is a doable thing! You don’t have to have the church and civil ceremonies together! And if Ms. Hurley wants to be a registrar of marriages for the state, she is perfectly free to become one either as a minister of religion, person other than a minister 0r (what I would have thought appropriate for Wicca) member of religion that does not have ministers – as long as she can provide evidence that she is not some fly-by-night setting up as a ‘minister’ to bilk her marks – and that entails having an address to act as the ‘church’ or ‘head office’ or what you like.

  • TKB

    Can’t help sharing this political cartoon from 1829, “Matrimonial infelicities, Mr State & his wife Church”:

  • Food for thought: What of the evangelical objections? That is to say, what of the homosexual man who, living with another man and three adopted boys, finds himself drawn to the Church. (His reason doesn’t matter — maybe he’s tired of dehumanizing stoicism.) He’s in a much tougher spot now than if there weren’t legal obligations which would keep him from the Church.

    It’s already mighty hard work to enter the Church from a position of grave error. How can asexual civil marriage — that is, civil marriage being irrespective of sex — be viewed by a Catholic as a Catholic as anything other than a kind of problem compounder, like no-fault divorce?

    • Ted Seeber

      I just had an argument over what is Catholic from a woman who claimed that the Pope wasn’t Catholic (oddly enough, on the liberal side- she also claimed that the LCWR incident is about more than a very visible nun going to Ireland to sell a book about gay marriage). So I’ve been called a conservative today, here’s my shot at being called a liberal.

      By removing the concept of civil marriage from the law, that makes Sacramental Marriage all the more special- and not only removes the problem the gays bring up, but gives heterosexual couples a model to strive for and a reason to convert.

  • Iris Celeste

    While I may roll my eyes whenever a Wiccan/Pagan speaks (such as when they state their religion, which is based supposedly on pagan myths does not believe in sin, which having enjoyed the classical greek plays in my youth I know pagans in antiquity did believe in sin: look up Orestes and Aeschylus’ Greek tragedy trilogy, the Oresteia, also Oedipus and the Theban plays by Sophocles, to see one example that to the pagans murdering a parent was a big no-no, sort of the Judaic injunction to honor ones father and mother. Another big eye roller is the claim that the Our Lady of Guadalupe apparition was somehow the Goddess Artemis i.e. Diana; lets see, a pagan virgin goddess appears pregnant; OK, you say no, she is the Mother Goddess, oh yeah, that is why she asked Juan Diego to go to the bishop and build a Church to her son in the site of a former Aztec mother goddess temple. A goddess who was represented by a snake, which by the way, the image is stepping on…) the State really needs to stay out of telling them what is and is not a religion, and who is and is not a “minister” of the religion as long as they are not breaking some fundamental law (you know, human sacrifice would break the law against murder, that sort of thing…)

    • kenneth

      And THAT is the absolute genius of pluralism. You’re free to hold and express such views about someone else’s religion, and those of us following that path ourselves are free to not give a rat’s rectum about what you think about us or our beliefs and practices. It’s a freedom we take particular satisfaction in exercising.

      • Doragoon

        As Chesterton said over a hundred years ago: The modern man says, “Let us leave all these arbitrary standards and embrace liberty.” This is, logically rendered, “Let us not decide what is good, but let it be considered good not to decide it.”

        • Ron K

          No, what it means is, ‘Let us decide on what is good individually, rahter than as a collective’.

          I am sure Chesterton would not have liked to live in Saudi Arabia, where good and bad are legislated and judged collectively, by sdandards other than his own. The only reason he could make such an argument is the fact that he is priviliged to live in a society that has historically accepted his views and he is afraid of losing that priviliged status.

          • Doragoon

            Chesterton wasn’t afraid to criticize people and tell them where they are wrong. Because you don’t agree with someone doesn’t mean you shouldn’t correct them. If someone thinks you need to die, it would be suicide to say, “let us agree to disagree.” A government that doesn’t take a stance on anything wouldn’t be a government at all. Since making an appeal to the majority doesn’t make the government right about what is good, how does a government know what’s good?

          • Ron K

            Since making an appeal to the majority doesn’t make the government right about what is good, how does a government know what’s good?

            It doesn’t. If anyone is looking to government as a moral guide, I think they’re looking to the wrong place. If anyone plans to build their governments to mirror their own morality, I’d suggest it’s highly unpractical in an environment where a large percentage of people disagree.

            You are free to think I should die all you want. You are free to convince other people of that opinion, including me. Let’s even assume, for the sake of argument, that you are absolutely morally correct, and that I should die. The government would still be justified in punishing you if you killed me, since it is not its job to determine morality. Its job is to maintain a stable and consistent standard of living together. In a stable and orderly society, the only people allowed to kill me not in self defence are the Police, the Military, and the Court system (in places where the death penalty exists).

            These is no shortage of examples of acts that are legal and immoral, or moral and illegal, etc. The legal framework, although it tries not to make laws that are considered by a substantial part of the poplulation immoral, is an independent system, and is not equivalent to any kind of moral system. Legality is a minimum standard of social behaviour. Morality is the maximum standard of righteous behaviour. In a democracy, legality is changable, according to the will of the majority. Morality is constant and unchanging. Legality is enforced by the power of the state. Morality can’t be enforced. Legality is about pragmatism, and what works in a society. Morality is about certainty and absolutes.

          • Doragoon

            You missed my point that a government that doesn’t take a stance on what is good is unable to do anything. Government couldn’t punish me for killing you because that would be taking the stance that it wasn’t good. I’m not talking about government regulating your actions, I’m talking about the government’s own actions. Stable and consistent standards are a good that you are using government to achieve. What means are acceptable to bring about that good? Is it okay for a government to do bad things to bring about that good end? Those are more moral judgements that the government will have to make. And what happens if an immoral majority push the government into an incongruity with objective morality?

          • Ron K

            1. I think I understood your point, I simply disagree with it. Neither a government nor a person necessarily need moral justification for their actions. The government doesn’t punish you to do good, it punishes you because it has to maintain equal treatment before the law. It does that to maintain social stability. It needs social stability to maintain its power. Personally, you and I could judge it as being good, bad or amoral, but it doesn’t matter one bit for the legal and political considerations of the state.

            2. “Government couldn’t punish me for killing you because that would be taking the stance that is wasn’t good”
            So, you claim that the US government’s torturing of prisoners means that it considers it a moral good? Does that mean that the state of Nevada considers gambling a moral good, while the state of California considers it evil? When a friend tells me about the trouble he has at his job, and I sell my stock in it before public disclosure, is that a moral evil? When I pass a red light, is that a moral evil?

            Personally, I think that only concious beings can hold moral positions. Governments, like corporations and foxes, are amoral entities, which consider only their own survival.

            3. I do not support using the government to bring about good. Firstly, I find that extremely couterproductive to the goal of government, which is its own stability and survival. Secondly, I would not personally want to live in a regime that dictates good and evil, even if I agreed with those definitions, because I (and the government) might be wrong, and dictating these discourages new moral thought and social change.

            4. what happens if an immoral majority push the government into an incongruity with objective morality?
            Then the government acts immorally, not for the first time in history. Actually, according to my personal moral outlook, no government has ever been moral.

          • Doragoon

            Either a government has an obligation to pass laws and act in accordance with objective morality (natural law), or governments like the one in 1984 are completely acceptable (meaning the main character was wrong for opposing it). If governments can act in such despicable ways in order to maintain it’s power and preserve it’s existence, why shouldn’t individuals? A king is still expected to act morally, even when he’s directing a government. What is immoral when done individually, is still immoral when done with friends. It doesn’t matter if the government is lead by one king, or a million voters.

            Once again, without the existence of objective morality, you have found there is no reason for moral behaviour. So everyone (government or individual) should do whatever they think they can get away with.

          • Ron K

            This has nothing to do with objective vs. subjective morality, my arguments apply equally in both situations. This is about you conflating *is* and *ought*, morality and reality.

            Morality-wise, everybody from the president down *should* behave morally. Everybody *should* agree on the same moral values, and there *shouldn’t* be any confusion about right and wrong. Everybody *should* be able to expect everybody else to behave morally. Laws and other means of coercion *should not* be needed to convince people to behave righteously. This is the *ought* level, this is not reality, this is fantasy, utopia, a dream of a perfect world.

            In real life, everyone from the president down *can* and *often do* whatever they think they can get away with. The concept of Law applying to kings was actually created in the middle 17th century to limit the arbitrary use of power by government in order to increase social stability (have you heared of absolute monarchy?). Very few people share the exact same moral values, and moral arguments are common. And if you live your life expecting other people to behave morally, man have I got the used car for you!

            1984 is actually a very good example of what a regime would have to do in order to legislate its vision of right and wrong — constantly monitor its people for their thoughts and actions, lure dissidents into fake resistance groups, and finally capture and re-educate them to believe in the moral outlook of the government. I don’t know if you remember, but the ideas behind the revolution in the book were quite laudable at first. The problem is real life — in order to have government impose morality you must give it too much power, and power corrupts.

          • Doragoon

            Without objective morality, how do you know that they aren’t acting morally? You’re not establishing how they know what morality is. If people (or governments) act certain ways already, why don’t we call those actions moral no matter what they are?

            You call the government in 1984 corrupt, but is that a bad thing? You’re simply applying your personal sense of morality to the government in the book. But the government disagrees. How do you know your moral code is more right than theirs?

  • Chris

    “Civil marriage and religious marriage are different institutions and ought to be treated as such.”

    Is that what the CCC says? That they are *different* institutions?

    • Um, basically yes, if only implicitly, by recognizing their separation in places like #1650.

      They are, of course, not unrelated institutions. For example, Protestants contract sacramental marriage by contracting civil marriage, Catholics (often) sin by civilly remarrying, etc.

      But in context the natural reading of Leah’s “and ought to be treated as such” is that the state should treat them so, i.e. not concern itself with religious marriage at all. And while I disagree with that, it is a totally orthodox position. The church has lots of teaching on how individual Catholics should relate to civil marriage but none on how the civil magistrate should regulate it.

      • Chris

        I’m not sure you’re reading that right.

        The context of 1650 is the indissolubility of marriage. There is no caveat for civil marriages (that are lawfully contracted; let’s omit defect of form for the time being). It brings up civil divorce as a matter of course because people do, in fact, attempt divorce, contra Jesus’ teaching the CCC references. But it doesn’t say civil marriage is one thing and religious marriage is another. If you’re validly married, you’re validly married.

        Anyway, my question was about whether or not civil and religious marriages are different institutions. As can be seen from CCC 1650 they are not as far as the Church is concerned when it comes to indisolubility. Are there any teachings of the Church that indicate they are [i]different[/i] institutions? I am unaware of any.

        • I just checked the authoritative Latin and now I’m even surer. Latin and English agree, that divorcees “contract new civil unions”. Strictly speaking that already talks of contracting where it could have talked of simulation. But there you could still suspect over-analysis. Except where the English is “[…]The Church maintains that a new union cannot be recognized as valid[…]” the Latin says (my emphasis) “Ecclesia[…] tenet se non posse hanc novam unionem ut validam agnoscere, “. Raping English rather than Latin grammar that would be “The Church[…] maintains itself not to can that new union as valid recognize.” Now this is talking about an impossibility rather than a voluntary policy, but it is completely silent on what other institutions might recognize. Then “If the divorced are remarried civilly[…]” is “Si divortio seiuncti novas civiliter inierunt nuptias[…]”. Nuptiae could be marriage, wedding, or fornication, but inire is to enter, which is only possible to a state of some durability. So civilly being remarried can’t be interpreted to refer to an ineffective ceremony only. And having done so, “they find themselves in a situation that objectively contravenes God’s law” (pretty much the same in Latin). Now technically you could say that sin is a situation too, but I think by now it is pretty clear that the situation is being civilly coupled to someone they aren’t really married to.

          Notice also, that #2383 talks of civil divorce sometimes being permissible, which would be theologically impossible if the actual marriage was the only institution it was directed at.

          So what’s happening here is pretty clearly that the catechism means the sacramental or natural law thing when it talks of marriage, but is aware of the plain empirical fact that other legal arrangements exist. In other words it knows they are different institutions.

          Now you could make an argument that these passages aren’t really meant to resolve that question, so it’s all obiter dicta. I would agree with that as far as binding teaching is concerned. But then it gets even simpler, because the catechism has no passages directly treating of the nature of the civil institution called marriage. Which means faithful Catholics are free to figure it out for themselves.

          And that was my original point. Remember I don’t agree with the statement Leah made and you quoted. I just note that it doesn’t contradict the teaching of the Church as expressed in the catechism.

      • Jim Kennedy

        The church does teach though that law is intended to teach virtue. One could certainly make an argument that many of the problems with sexual morality in our culture today are based on the fact that our laws have declined to teach virtue in its laws on contraception, abortion and divorce.

        • kenneth

          The Church can teach virtue on its own time to it’s own people. The rest of us are not citizens of any papal state, and we’re not particularly interested in its teachings. As far as we’re concerned, the government’s job is to protect the borders, protect life and property on the streets, keep up the infrastructure, keep commerce reasonably honest, and to honor the sovereignty of citizens equally as laid out in the Constitution.

          • suburbanbanshee

            Argh, argh, argh. If the state doesn’t encourage civic virtue (at least by not penalizing it), the state is encouraging civic vice, selfishness, street gangs, vigilante justice, etc. The state is then encouraging its own collapse.

            Civic virtue, as the ancient Greeks and Latins would tell you, is not the same thing as personal virtue. A law-abiding, public-minded citizen is not necessarily someone who is all that nice personally, even if he makes a good neighbor. But when it comes to civic virtue, the state is interested in good neighbors, as opposed to everybody killing and raiding everybody.

            If the state doesn’t regulate marriage in some way, the state is saying it’s okey-doke for Dad to regulate marriage by coercing it with his shotgun, or for Susie to regulate marriage by poison gassing everyone who ignores her previous claims.

          • kenneth

            The state does regulate marriage in a number of ways. As an act of kidnapping and assault with a firearm, a shotgun wedding is already pretty well illegal. The state still has no business teaching or enforcing the Church’s teachings on contraception or sexuality.

        • Yep, that argument can be made, and to some extent I would even agree with it.

          But the Catholic tradition also holds that the civil magistrate should tolerate vices where trying to eradicate them would be more harmful than they are. Think of Thomas Aquinas famously recommending legal tolerance of prostitution, though he obviously wrote in a time before human trafficking.

          Balancing that is mostly a question of prudential judgment, and it’s licit for other people to come to judgments more liberal than mine.

  • If I read this post correctly it seems to me that rather than have a serious discussion about what marriage is we should just completely separate civil marriages and religious ceremonies.

    You claim civil and religious marriage are “different institutions” which is fine, but I’m not too privy with that argument. Yes, the US can’t endorse one thing over the other as far as religious ceremony or practice, but even if we relegate civil marriages to its own separate field, what then? We still have to discuss what marriage is, why, and the consequences of such a decision.

    In bringing up the “separation” of civil and religious, you just make the easy argument and avoid the argument worth having, I think.

    If I had to put in more of an opinion than a full-blown thought, a civil marriage as of now isn’t considered much beyond fulfilling legal requirements–heck, some religious marriages are the same (or treated as such). Yet, at least for Catholic marriages (and many Protestant marriages, I’d wager) there are objective criteria for determining what a good marriage is, how it should be approached, and why. I find that when one divorces himself from a discussion of ‘the good’ of something (just to speak vaguely for the sake of brevity) then the concept, in this case [civil] marriage, is in a lot of trouble.

  • Andrew

    I’m wondering why civil marriage exists today. As a sacrament, matrimony binds a couple by a holy power and their vows.

    Inasmuch as non-religious seem to crave ritual and ceremony, why is civil “marriage” recognized at all? If a contract is desired it seems that an attorney(s) could write an agreement designating the responsibilities of each party. The contract could also designate property distribution in the event of death and end of life decision stuff. A great party could be thrown immediately after signing the contract. As a cultural institution, civil “marriage” seems old fashioned and completely misaligned with current standards (good or bad). The declaration made by a county judge or a sea captain is needed no more than the blood test.

    Catholics (and other religious) have the power to make civil marriage meaningless. My suggestion to religious couples is to avoid city hall, forget the marriage license. No need to take part in the silliness.

    • Kristen inDallas

      That would be very tough in common law marriage state. Get sacramentally married, call a person your husband or wife, and cohabitate for a given number of years, and ipso facto, no state license needed, you are civilly married. Good idea though…

    • kenneth

      You can draft any number of contracts between you and another person. That means nothing to any third party, like a hospital, or Social Security, or your employers insurance etc.

      • Andrew

        No. Privity is not an issue. The private contract means everything. Attorneys-in-fact commonly have authority to make decisions typically only known between spouses. The spousal contract would designate this power of attorney.

        When was the last time you had to present a copy of your marriage license to any authority?

        • kenneth

          I’ve never had to present a copy of my marriage licence, but then I’m married to a woman so we get an ironclad presumption of validity in these circumstances. A same sex couple who has nothing to go on but a folder full of thick documents in legalese will get hung up in channels, every time.

          In hospitals and nursing homes, much of the staff these days is marginally conversant in English, let alone the version of it that lawyers employ. People understand right away what it means when you say “my wife” or “my husband”. Other arrangements get you blank stares and get hung up in channels, to say nothing of the nightmare that happens when the family contests the rights of a person who is “just a life partner.” Paperwork is a VERY poor replacement for the status of “family” or “married.”

          I’ve had months and years when I had to function as my dad’s power of attorney in health care situations etc. It was a nightmare just getting people to understand THAT. I couldn’t even get doctors on the phone in critical situations until I had faxed or delivered a copy of the damn thing, which would immediately be lost by the time the next shift came in. People who say gay partners have everything they need without marriage have never had to walk in those shoes.

  • Jim Kennedy

    I used to be quite a libertarian about the state and marriage as well. My essential feelings about it was, as far as Catholic Marriage goes, the ‘civil aspect’ is about 5 minutes or less in the sacristy before photographs, where the bride and groom sign some papers in front of witnesses. Why don’t we call that a ‘civil union’, and allow any two people to acquire a civil union upon signing a legally sufficient document in front of a number of witnesses. I was convinced that I was wrong to be so libertarian in my approach to state ‘marriage/civil unions’ by Professor Charles Rice at Notre Dame. His argument in reply to my libertarian suggestion was two fold. 1) Why are these civil union things limited to 2 people, why can’t a person acquire one with multiple other adults, or with a beloved pet (this wouldn’t even have to be a bestiality relationship), the question is why does the number matter, and why does the fact of persons matter, in a purely libertarian view of civil marriages. Another example, a nun considers her self the ‘bride of christ’, why can’t she get a civil union with Christ? Are we discriminating against her ‘marriage’ by not offering her the same state benefits offered to a family? 2) When the state recognizes a civil right to marriage, how certain are you that they won’t force Catholics or other ‘marriage traditionalists’ to perform a civil union ceremony for anyone eligible for a civil union? In other words, would a court interpret a refusal to do so as a permissible exercise of Religious Liberty or would they say that it was discriminatory, and that therefore Churches had to recognize all civil unions with a religious ceremony.

    • Andrew

      Yep, that’s a scary question. I’d like to think it couldn’t happen for multiple reasons. But the notion of sexual rights is being promoted and accepted. I’d guess that a couple SCOTUS members would determine the sexual right superseding religious liberty.

    • kenneth

      If you were swayed by Rice’s sophomoric arguments, you should have spent your tuition money at a party school. People who drag out the slippery slope arguments about marriage to one’s pet etc. are either stupid or feel their audience is stupid. It’s almost always the latter. Any professor, especially, who says with a straight face that there is no way to distinguish human/animal marriages from gay ones really ought to have their tenure up for review. Attorneys who graduate dead last from the bottom of the barrel law schools and eke out a living on DUI cases can figure this one out, and they could have done so while still drunken pre-law undergrads themselves. Marriage, as with any other contract in law, presumes that both parties are able to give informed consent and to possess the faculties that so far, only humans have displayed in the animal kingdom. If Rice truly can’t see that, he ought not to have graduated himself, let along received faculty appointment in any serious discipline.

      The “civil union with Christ” is equally absurd. Christ, as he is understood by contemporary followers, especially Catholic nuns, is not a legal resident of any state or commonwealth. All of the frivolous lawsuits against God for this or that have been dismissed in seconds on this basis. As to the polyamory question, there is no reason in theory, at least in libertarian theory, why more than two adults should not be able to enter into it. I happen to favor that right as well, provided that appropriate family law can be drafted to cover it.

  • Literata

    Hi Leah,

    Thanks for mentioning this. While on many levels I agree with the idea that the legalities of marriage should be a purely civil matter, at this time they’re not, and I want to be able to serve my community by performing marriages – where I would simply consider myself a kind of court-authorized reporter – when my community asks me to.

    Unfortunately, though, there continue to be other situations where the state and private institutions try to determine whether something is “really” a religion and someone is “really” clergy. Ministry in hospitals, prisons, and the military are all situations like this. So is the privilege of clergy to have confidentiality with people they minister to. Whether we like it or not on separation grounds, the ability to perform marriages is used, along with an organization having 501c3 status, as a “sniff test” or proxy by which a lot of other governmental and private institutions will judge whether or not to grant those privileges. Because of that, for me, this is about a lot more than just doing weddings.

    There’s a lot more nuances involved, and I’m afraid I can’t devote a lot of attention to this comment thread, but you and your readers are welcome to follow the conversation on my blog or contact me. I also strongly suggest checking out Hecate Demetersdatter’s posts on the subject as she knows a lot more about rhe legal issues involved:


  • Simon

    it’s pretty preposterous that in this modern day and age the civil concept of marriage is bound and and foot to religion. i joined the ulc to perform wedding ceremonies for friends and family members and i’m a devout atheist… thank god (or whatever deity you choose to worship haha) the universal life church gets it. if you feel the same way i do, please visit their site (the link is given in the article above but, in case you missed it, its URL is

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