The state has a long history of involving itself in the spiritual practices of its citizens. The English Reformation, the time period with which I am the most familiar, is filled with such moments. For example, in 1536 Thomas Cromwell, Henry VIII’s first minister, vicegerent in spirituals and vicar general of the newly created English Church, began to issue injunctions to the clergy of England. Among other things, they were to defend royal supremacy and abandon pilgrimages. His 1538 injunctions encouraged iconoclasm—the destruction of images of saints in sculpture or painting—prohibited the burning of candles for saints and for the dead, and required that an English copy of the Bible be put in every church for parishioners. The Elizabethan Act of Authority (1559) forbade the use of any prayer book but the approved Book of Common Prayer.

Indiana, at the moment, is having a reminder of precisely this sort of spiritual meddling by the state. According John Murray at the Indianapolis Star the laws that are causing the furor “generally address perjury on a marriage license application and attempts to perform marriages not allowed by law.” While the laws have been on the books in Indiana since 1997, at least, they are receiving renewed attention because of the contemporary legal debate over same sex marriage. My interest in the law is particularly focused on section 7, which states that a person who “knowingly solemnizes a marriage of individuals who are prohibited from marrying” can be hit with a 180-day jail sentence or $1,000 fine.

I realize that the main focus of the debate over same sex marriage is not about state intervention in religious matters. So why am I so interested? Because if my mom lived in Indiana she would be a felon.

Ordained by the Unitarian Universalist church in 1980, Mom performed same sex unions from the earliest years of her ministry, and so did nearly all of her colleagues. The same is true for many of Mom’s clerical colleagues of other faiths. Rabbis from the Reform Jewish movement have solemnized or blessed same sex unions for decades, as have ministers from a wide range of Christian traditions. Depending on how strictly one interprets the law’s use of the words “solemnized” and “marriage,” every one of those ceremonies could have been a felony. Every one of those religious leaders could have been a felon. For mom, and for the rabbi at the Temple I attend this is not a hypothetical concern. For the clergy members I grew up with and the ones I have met since this is a vital spiritual issue.

For many of these religious leaders, for many of those of us who are their congregants, the celebration of a marriage between people who love each other—bride and groom, bride and bride, or groom and groom—is part of our celebration of faith. We might pray to “the Ruler of the Universe, Who created joy and happiness… rejoicing, song, cheer and delight, love and humankind and peace and friendship.” Or we might ask that God “Grant that in the years ahead they may be faithful to the promises they make this day, and that in the strength of the Holy Spirit they may grow together in the love, joy, and peace of our Saviour Jesus Christ.” We might thank the “giver of life and love” for “all that binds us to one another; for all the common experiences which make us kin; for the needs which find their highest satisfactions in loving association with others.” Regardless of how the marriage is blessed and regardless of who is blessed, these ceremonies are serious acts of faith. We do not “tolerate” these unions. We celebrate them. Telling clergy members that they cannot enact them is an appalling intrusion into spiritual practices. It is the equivalent of telling people what words they may or may not use to pray, what direction they must face when praying, or how many times a day they must pray.

The opponents of same sex marriage spend a lot of time arguing that marriage is a religious institution, and that the state should not define it. But they seem cheerfully willing to wield the force of the state to enshrine a definition of marriage that comports with their own religious traditions, no matter how severely it violates the religious traditions of other, equally faithful, groups. Our traditions may not be your traditions, but they are no less the cornerstones of our houses of faith. And they deserve no lesser protection from the intrusions of the state.

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  • C. Brockman

    I also posted this comment on Volokh and there may be a response that I missed, but I think “solemnization” is a legal term of art that would not make your mom a felon.

    The list of persons who can “solemnize” was litigated last year (Center for Inquiry v. Clerk, Marion County, No. 1:12 CV 0623 SEB-DML (S.D. Ind. Nov 30, 2012)) Page 3 of the linked decision states:

    “The individual who “solemnizes” the marriage has three related responsibilities: (1) completing the original and duplicate marriage certificates; (2) presenting the original certificate to the couple; and (3) “[n]ot later than thirty (30) days after the date of the marriage,” filing the duplicate certificate and the actual marriage license with the clerk of the circuit court who issued the couple’s license.”
    http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CDQQFjAB&url=http%3A%2F%2Fwww.in.gov%2Factivecalendar%2Fdisplaymedia.aspx%3FwhatToDo%3Dattch%26id%3D2168&ei=5nPtUZO-EYGMygHZ_4Fo&usg=AFQjCNFmJIPBjFQYUGB-HjusCAe786QQ7w&sig2=9iMhKVjdEyiwOG4KxUFCTA&bvm=bv.49478099,d.aWc&cad=rja

    In other words, this statute makes it a crime for someone to lie on a (or knowing submit a false) marriage certificate, a government document. If anything, the list of people who can solemnize is the potential First Amendment violation
    (although Judge S. Barker disagreed).

    While not arguing that the government shouldn’t be involved in marriage, if it is going to issue a license and require someone to sign an application, I think they can say you can’t either lie on it or submit an application that you know to be false.

    • Sarah Skwire

      This is a good point, and I’m not qualified to argue the legal niceties of it–though I do still retain my concern about the lack of specificity of the term “solemnize” (which is a term that clergy use in an entirely different way than in this very strange sense of “filling out state forms) and the general slipperiness/complexities of legal definitions about religious practice in general.

      However, even if my mom *isn’t* a felon, the larger point of the piece–that opponents of same sex marriage want to “wield the force of the state to
      enshrine a definition of marriage that comports with their own religious
      traditions, no matter how severely it violates the religious traditions
      of other, equally faithful, group”–remains solid.

      • Jonathan Watson

        C. Brockman is correct as to the law – no penalty falls upon those who celebrate purely religious ceremonies.

        One way to consider the matter is that opponents of same-sex marriage want to “wield the force of the state”. Another way to look at it is to consider that traditional marriage has been around for generations, and there was no need for the state to specifically require that marriage be between a male and female until the proponents of same-sex marriage started demanding “equality”.

        If a same-sex couple married by your mother considers themselves married, why should it make a difference whether the law recognizes the marriage or not?

        And if your response is “because it is discriminatory to deny people the right to do what they wish with their relationships”, then:

        1. If the law does not deny them that right, why must the right be enshrined as a positive force?; and

        2. What limit is there upon the question of who may be married? If three people, or two adult siblings, or a group want to be married, do you see any limitation, and if so, why? (See, e.g., http://prospect.org/article/slippery-slope-polygamy-and-incest)

        • j r

          If a same-sex couple married by your mother considers themselves married, why should it make a difference whether the law recognizes the marriage or not?

          This is an odd question. Maybe it should not make a difference, but in fact it does. Maybe the state should not force you pay a fee and fill out paperwork before you remove a tree from your front yard or open a business or do any number of things, but the reality is that it does.

          So long as the state licenses certain behavior, then questions of eligibility are perfectly valid question of public policy.

          As for the slippery slope argument: who cares? As a classical liberal, I am certainly in no hurry to destroy traditional institutions and arrangement just because I can imagine something better. However, expanding those institutions to allow more people is exactly what liberalism is all about.

          • Kevin

            There are two sides to state licenses: (1) what the license permits you to do, and (2) what the license requires from everyone else.

            Is your (classical) liberalism really all about expanding such state institutions?

          • j r

            Another odd question. To the extent that state institutions exist, then yes, classical liberalism is about expanding access

            For example: a state that limits suffrage to landholding white males is less liberal than a state that recognizes universal suffrage. Or a state that delivers a higher level of educational services to white students than to black students as a matter of policy is less liberal than one that pursues a policy of public school integration.

            A marriage contract permits you to enter into a legally recognized union and it requires everyone else to recognize the elements of that contract, in the same way a house deed requires that everyone else recognize your home as your private property. If you want to argue that the state has no business granting such licences, fine. I disagree with you, but fine; that’s your opinion.

            However, so long as the state does grant those licenses, it should do so on an equitible basis.

          • Kevin

            Is classical liberalism served by expanding access to corporate welfare? I imagine you would answer no and that you actually have in mind implicit conditions and not simply “expanding access”. On the other hand, if you answer yes, that might actually be consistent with modern liberalism.

            The problem that I see is that the social good and rational criteria for marriage is procreation and that is already universally applied (i.e. equality under the law).

            It is only by abandoning that basis altogether that a new universality and equality of marriage can be constructed, but that new universality is only being partially pursued in order to include gays while excluding polygamists or relatives.

            It’s as if you want to expand suffrage from whites to include blacks, but still exclude Asian citizens. Your response of “who cares?” hardly seems classically liberal when your real goal is simply to expand access to include one particular group.

          • martinbrock

            That the question of eligibility is valid does not imply that expanding eligibility in the name of “fairness” is the best answer. Contracting eligibility in the name of fairness, by excluding childless couples generally from marriage for example, could be a better public policy. If always expanding statutory institutions is what “liberalism” is all about, then liberalism is extremely flawed in my way of thinking.

          • j r

            Basically, you want to reform an institution that most people like in a way that almost no one likes. That’s fine.

            However, for me, this is about looking at the status quo and advocating for meaningful and possible improvements. If the marginalist approach does not appeal to you and you’d rather try to smash the state and reconstruct the libertarian utopia from whole cloth, that is fine. It just means that we are having different conversations.

          • martinbrock

            I don’t at all believe that people are entitled to statutory institutions they like, because these institutions impose obligations on people not party to them involuntarily; however, young people show no great love for modern marriage. While gay political activists cry to be let into the party, young straight couples increasingly avoid it. “No marriage, no divorce.”

            You are not alone in seeking meaningful improvement, but I have no illusions either of smashing any state or of improving one. I describe here what seems best to me, from a utilitarian perspective, not what I expect any state ever to enact. I don’t expect the gates of Hell to open for me either.

            If you expect to improve some state, good luck with that. I only want people who want to be free of states to have what they way.

        • ThaomasH

          “Another way to look at it is to consider that traditional marriage has been around for generations, and there was no need for the state to specifically require that marriage be between a male and female until the proponents of same-sex marriage started demanding ‘equality.'”

          And why was there a need after the demand or equality (no scare quotes are necessary) was made?

          • Jonathan Watson

            Thaomas:

            We live in an age of positive law – in other words, judge-made or customary law carries very little force either in courts or (increasingly) as guides of behavior.

            Therefore, when challenges arise to what “everybody knows” as unwritten law, the legislature must often codify the unwritten to make it “mainstream”, so to speak.

          • ThaomasH

            But if county clerks and other such officials had just started treating people equally, no action by legislatures, much less the US Congress, would have been necessary.

          • Jonathan Watson

            County clerks and other such officials have no latitude to change law to what they think it ought to be – they are functionaries, not legislators or judges.

          • Libertymike

            Do they have latitude to disregard the principles (1)undergirding the Declaration of Independence; (2) the founding and (3) the non-aggression principle?

          • Jonathan Watson

            They have latitude to check the boxes the legislature sets forth for them. If X and Y are required, and X and Y are evident, then the license is issued; if not, they no.

          • Libertymike

            According to Sam Adams?
            According to Patrick Henry?

          • ThaomasH

            But if there is no law prohibiting people of the same sex from parrying or of specifying that the couple must be of opposing sexes, they would not be changing the law.

        • Kevin

          1. Because the point is to compel recognition of their marriage.

          2. There is no limit once procreation is removed as the basis for marriage.

          • martinbrock

            Once procreation is removed as the basis for marriage, what’s left for community standards to govern? Why is a relationship between two adults anyone else’s business? My problem with gay marriage is that childless marriage generally (as a statutory institution incorporating statutory benefits for licensees) seems completely illegitimate to me.

            We should be reforming marriage to exclude childless straight couples, not to include gay couples, unless a gay couple forms a partnership to raise an adopted child with all of the customary bonds existing between parent and child and between parents of the same child, and we should be strengthening these bonds rather than weakening them. Everything about marriage is moving in the wrong direction in my way of thinking.

            Simply adding a few gay couples to the class entitled to benefits of marriage doesn’t make the institution more equitable. This reform makes marriage less equitable for countless, more numerous partnerships, like cohabiting siblings and adults living with a parent, still excluded from the benefits, and it moves marriage ever further from its traditional function of cementing the bond between parents of the same child.

          • Kevin

            I agree. Aside from children, I don’t see what the social benefits are from marriage that would justify using the force of government.

            Childless straight couples might accidentally have children, so I can see some benefit to heterosexual reasoning on principle, but given the damage the government has done in favoring and disfavoring marriage, I’m inclined to remove its influence altogether, particularly at the federal level.

            It also makes no sense to me for the federal government to pass laws with words whose definitions are independently chosen by each state.

        • TracyW

          If a same-sex couple married by your mother considers themselves married, why should it make a difference whether the law recognizes the marriage or not?

          What happens if the same-sex couple breaks up, and one party claims they weren’t married? (Or, alternatively, a close same-sex friend in a platonic relationship claims they are married, for monetary reasons). Or what happens if one of the same-sex couple is in a coma in hospital, and their parents claim that the couple weren’t married, and thus the other party has no right to make medical decisions, or even visit? (For extra fun, assume that one of the conscious parties has unusual religiously-motivated beliefs about medical care).

      • Kevin

        It remains solid if marriage is simply a subjective religious tradition, but if that were the case, then there would be no objective basis for the distinct involvement of government.

  • Libertymike

    That the state exists and intrudes upon us all should be the most vital spiritual issue for everybody, particularly for proponents of same sex marriage. The state is evil incarnate; it is spiritual death and no two people who seek to voluntarily associate should dignify the devil by asking permission to do so.

    • Kevin

      If marriage were merely about voluntary association, your call might be heeded, but it is not. Instead, it is more about the involuntary requirements placed upon everyone else.

      • martinbrock

        That’s an even better reason to eschew the statutory institution.

        • Kevin

          I agree.

    • TracyW

      The state tends to get called in when two people who have been voluntarily associating stop doing so. And then can’t agree on what happens to the house/farm/bank accounts/etc.

  • famadeo

    I’m against the institution of marriage in any form. Living arrangements between people should not concern anyone but themselves. Even then, however, I find the perpetuity clause of monogomous relationships rediculous.

    • TracyW

      It’s not the living arrangements, it’s the property arrangements when the relationship ends (through death or breakup), or if one party claims there was a relationship and another party claims there wasn’t, or there wasn’t a relationship of *that* type.
      Eg, elderly wealthy widower hires live-in housekeeper. Some years later, widower dies of natural causes. Housekeeper claims they were secretly married, and she’s thus entitled to half his property. Widower’s children claim there was no relationship. Widower is obviously incapable of giving his opinion.

  • Sean II

    When I see a woman wearing a hemp tallis reading an Apache blessing as she presides over a non-traditional marriage ceremony, the second thing that crosses my mind is: “this should not be a crime”.

  • Joe Grimm

    Marriage existed before the founding of Unitarian Universalism and is prevalent even in atheist societies. The fundamental character of marriage is to create a corporation: the “family.” Since the enforcement of contracts and regulation of corporations are necessarily the domain of the State it is appropriate that unlawfully officiating a marriage is a felony.

    I agree with your mother that there should be marriage equality before the State. If she thinks that a true reading of our Constitutions implies the existence of such equality, and thus makes legal her actions, I even agree with that!

    • Libertymike

      Does the state have a monopoly relative to the questions of contract enforcement and corporate regulation?

      • Joe Grimm

        Yes. I cannot even imagine what alternative you have in mind.

        • Libertymike

          In point of fact, even under the present regime, government does not exercise a monopoly on contract enforcement or corporate regulation.
          Parties are free to agree on choice of law and dispute resolution provisions in their contracts. Two American companies can freely elect to have the law of a foreign jurisdiction, including a non-state entity, govern their agreement.
          Corporate regulation is not limited to the state. I am sure you are aware that some corporations have rather elaborate by-laws which regulate the conduct of their directors, officers and stockholders.

          • Joe Grimm

            All of those methods of enforcement are reliant either on the mutual agreement of all participants, which I think bars the use of the word “enforcement” or the assumption or actual fact of that the state will hold the relevant actors to their prior commitments.

            I think my understanding of “state” and “enforcement” are moderately different from yous, and are such that to say the state enforces contracts is tautology.

            From my perspective the only potentially interesting question is how to weigh the sacral and profane components of marriage.

          • Libertymike

            Yes, to be sure, the state has given its imprimatur of approval to alternative dispute resolution and internal corporate governance regimes.

    • martinbrock

      I googled the Indiana code, and unlawful “solemnization” is a misdemeanor. Issuing a fraudulent marriage license is a felony, but people entitled to officiate at a marriage ceremony don’t issue the license.

      Still, I share Sarah’s misgivings, but the problem for me is not that marriage is a sacred union but that it’s a personal union. I don’t much care how God feels about my partnership with another person, but I do care how politicians feel about it, and I don’t want them involved at all. The terms of my relationship with a partner are entirely our business, and the whole idea of a committee of politicians drafting the terms offends me.

  • RaleighDevil

    My first problem with this post is that the author is under the mistaken impression that the Unitarians are Christians. They are not, so please stop calling their places of worship Christian.

    • MerlinYoda

      You may not like it, but Unitarians are a Christian denomination by all religious classification standards. Just because their more “liberal” Christian beliefs may not fall in line with your particular view of Christianity doesn’t disqualify them from falling under the banner of Christianity.

      • martinbrock

        Both Unitarians and Universalists were self-described as Christian denominations historically, and other denominations self-identifying with Christianity, like Christadelphians and Jehovah’s Witnesses, also reject the trinity. Of course, the modern UUA is less explicitly Christian, and the congregation I attended advertised itself as a “church for people who aren’t religious”.

      • RaleighDevil

        I am sure your views would go over well at a Southern Baptist convention. The Unitarians used to be Christian, but then they decided that the death and Resurrection of Jesus Christ and and idea of salvation through Him were not “inclusive” enough. Nowadays, being a Unitarian involves being a “good” person and doing good things. There isn’t anything particularly Christian about that.

        • good_in_theory

          It certainly seems to be true that there is not anything particularly Christian about being a good person or doing good things.

    • Sarah Skwire

      Wait, what? I have never called the Unitarian Universalists Christians. There are certainly Christian UUs, but there are non-Christians UUs, and atheist UUs. Unitarians are non-trinitarian…it’s right there in the name.. so if for you–as for most Christians–a defining characteristic of the Christian theology is acceptance of the trinity, UUs are, at the very farthest stretch, heretical Christians. I am aware of that. I was brought up in that faith. By a minister in that faith.

      So I think you must have misread me. I did refer to the UU place of worship as a church. Is that the locution to which you are objecting?

      • martinbrock

        He misread you, and he’s being devilish anyway. I wasn’t raised in the UUA, but I attended a congregation for a while.

      • RaleighDevil

        The most important belief in the Christian religion is the birth, works, death and resurrection of Jesus Christ. One does not achieve eternal life without Him. I have read enough about the Eno River crowd in Durham, NC to understand that they are not interested in anything as “divisive” as theology. It all reminds me of when Disney tried to strip Christmas of all its theology in order to have it appeal to everyone so that more money could be made. It’s not about finding things that everyone can agree on. It’s about the truth.

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