Civil vs. Religious Marriage

“I now pronounce you husband and wife.”

Who is authorized to utter the Wedding Pronouncement, those seven words that finalize most wedding ceremonies?  The states make the rules on this.  Most of them authorize members of the clergy, judges, both active and retired, and Justices of the Peace.

In the United States, a marriage can have two parts, one essential, the other optional.  The civil procedure, the only part the government cares about, requires the couple to obtain a marriage license, and then take part in a procedure in which their signatures on the marriage certificate are witnessed.  The witnesses and the marriage officiant, must also sign the certificate. The optional religious ceremony is irrelevant to the legal obligations and rights defined by the civil marriage.

Eighty percent of the weddings performed in the US take place in a church, and are presided over by a member of the clergy.  This confers on the church and its leaders a special recognition in secular affairs that “entangles” church and state functions.  Why isn’t this seen as a violation of the Establishment Clause? Does it violate the criteria established by the Lemon Test?

The Lemon test is named after the lead plaintiff Alton Lemon in a 1971 Supreme Court case that was concerned with the funding of Catholic schools in Pennsylvania.  The court ruled in an 8–1 decision that Pennsylvania’s Nonpublic Elementary and Secondary Education Act was unconstitutional, violating the Establishment Clause of the First Amendment. The act allowed the Superintendent of Public Schools to reimburse private schools (mostly Catholic) for the salaries of teachers who taught in these private schools. The decision of the Court details the requirements for legislation that provides financial support to religious institutions. The test they constructed is threefold:

1. The statute must not result in an “excessive government entanglement” with religious affairs. (also known as the Entanglement Prong)
   1. Character and purpose of institution benefited.
   2. Nature of aid the state provides.
   3. Resulting relationship between government and religious authority.
2. The statute must not advance nor inhibit religious practice (also known as the Effect Prong)
3. The statute must have a secular legislative purpose. (also known as the Purpose Prong)

If any of these prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

In the Lemon case, school officials…teachers or administrators…were found to be in violation of the Establishment Clause when they organized and/or led organized prayers.  Government employees were engaging in religious rituals in a government-funded facility. This fails all three of the prongs in the Lemon Test.

In the case of marriage, a religious leader presides over a predominantly religious ceremony performed in a religious facility.  Members of the clergy are given civil powers to perform a ceremony that is legally binding on both parties. Even though the government provides no funding for this, and it is a longstanding tradition in our society, let’s see how it holds up when probed with the three prongs of the Lemon Test:

1. Entanglement Prong:  Authorizing religious leaders to perform government functions conflates government with the religious institution.
2. Effect Prong:  Allowing churches to combine the religious wedding ceremony with the civil procedure promotes the church as a quasi-government organization, in direct contradiction of the Establishment Clause.
3. Purpose Prong:  The wedding is performed in a church by a church official, and includes religious liturgy.  Does anyone doubt that a Catholic nuptial mass, presided over by a Catholic Priest in a Catholic Church is primarily a religious ceremony?  Government should have absolutely no involvement in such an affair.  It has no secular purpose.

Religious believers say that combining the civil and religious functions of marriage is convenient, simplifying the marriage process.  That is certainly true.  There were probably similar claims supporting the continued segregation of schools, residential areas and marriage itself.  Government’s forcing of integration of these societal functions certainly complicated life for the people who opposed them.  Probably some people favored the continuation of restricting the right to vote to men to keep things simple.  Letting women vote changed the political process and definitely made things more complicated.  Nobody promised that democracy would be easy.  A theocracy would certainly be a lot simpler than the complicated task of following our Constitution giving equal rights to everyone and dis-entangling churches from government.

Bert Bigelow graduated from the University of Michigan engineering school, and then pursued a career in software design.  He has always enjoyed writing, and since retirement, has produced short essays on many subjects.  His main interests are in the areas of politics and religion, and the intersection of the two.  Many of his writings are posted on his web site, bigelowbert.com.  You can contact him at bigelowbert@aol.com.