Re: Rights of clergy regarding same-sex marriage?
My response, matching your comments, appears throughout. [EMAIL PROTECTED] 3/15/2005 10:54:32 PM On Mar 15, 2005, at 2:47 PM, James Maule wrote: Though I am proposing a shift away from marriage as a civil right (and its replacement with something else), I am not proposing a shift away from marriage as a religious ceremony. To the contrary, to the extent states get involved defining marriage it cheapens that sacrament as it stands within churches. Let me explain why. Once upon a time in England While I have studied and deeply appreciate cultural anthropology, I am far from childhood and have learned to recognize condescension when I see it. I am a 45 year old woman, with 9 years active duty in the USN, two marriages, and a 24 year old son. This time I'll assume you're simply using the classic storyteller's narrative device. Next time I'll be less polite. JEM: I was using the classic storyteller's narrative device to set the beginning back in time. Had I wanted to be condescending I would have been condescending. I do not understand why you are so quick to think that my intent was to be condescending. When I wrote my response I had no idea of your gender (Jean being both a male and female name), age, military service, marital status, or fertility. Nor did any of that matter. Thus, nothing that I wrote was, or could have been, directed at anything other than the words in your posting. (from which our traditions in this respect originate) No. From which our traditions deviate. Read on, McDuff. (With apologies to Shakespeare) JEM: The history of American law, with the exception of Louisiana and chunks of law in Southwestern states, is steeped in England law and legal traditions, itself flavored by other traditions. the only officiating with respect to birth was parish registration (and that was not widespread before the 15th century). It was a recording of the date of the baptism and the names of one or both of the parents. Later, the civil government instituted birth registration (recording date of birth and the names of both parents). Civil servants handled the civil registration, and curates and pastors continued baptisms. They did not stand in as civil registrars. The same pattern developed, though a bit differently in detail, with deaths. (For example, parish registers recorded date of funeral and burial, though some recorded date of death as well). If a church supervised a burial, the information on the death could come from the church, but it could also come from others. I have no argument with any of this. Doesn't mean there aren't any, just that I don't have one. Marriage was originally a church matter, a sacrament. Er, hold on a minute. To avoid confusion, why don't we agree to say that at the time of the migration to North America (early 1600s CE for our purposes) marriage was a sacrament of the Anglican church. Prior to that, it had to be incorporated into the doctrine of the sacraments in the Catholic church. Prior to *that*, it was largely a civil affair, with little or no ceremony. I seem to remember reading that a couple would pledge to one another on the steps of the church as a means of making a public commitment. Later, they would ask the blessing of the priest on their union. (Much like Prince Charles and Camilla plan to do.) JEM: The catholic (pre-Reformation) church long had an interest in marriage, and regulated it, even if it was not denominated a sacrament as such. Canon law with respect to marriage goes back many centuries. The church set forth (and many Catholic rite and Protestant churches, among others, continue to set forth) restrictions and prohibitions regarding marriage (such as marriage between individuals too closely related), and also issued dispensations with respect to marriages that would otherwise violate those prohibitions. This occurred as early as the Council of Elvira in 300 A.D., and by 1059 at the Council of Rome, had developed into a more sophisticated set of rules, indicating that church supervision of marriage goes back much earlier than 1600. (http://www.newadvent.org/cathen/01178a.htm). Marriage as a sacrament was widely accepted in the church by the 8th century, however the sacramental nature of marriage was not written into Canon law until 1563. (http://civilliberty.about.com/od/civilunions/a/MarriageFeb05.htm) This quotation is based on the fact that the Council of Trent was reacting to Protestant (particularly Luther's) assertion that marriage was not a sacrament, in contrast to what had been accepted for centuries. By the time of the Council of Florence, and in a 1208 papal directive, the nature of marriage as a sacrament had been taken as established. (http://www.newadvent.org/cathen/09707a.htm). JEM: As for the civil side, royalty and nobility needed consent of the government (i.e., their feudal overlord), but the rest of the population, other than perhaps having to yield to
Re: Rights of clergy regarding same-sex marriage?
The right to marry doesn't include the right to a church wedding. Pastors, rabbis and other religious leaders who may perform marriages now have relatively wide latitude to say for whom they will or won't perform the ceremony. The couple may get married in a civil ceremony at the courthouse, or with another official presiding at some other location. Traditionally, in the U.S. the problem has not been finding people to perform marriages, but rather to find people who won't perform them when they shouldn't be performed -- underage kids, for example. This latitute allowed to the marriage solemnizers allows marriage performers to use many different reasons to refuse to perform any particular marriage, even unsavory and against-public-policy reasons. Ed Darrell Dallas Jean Dudley [EMAIL PROTECTED] wrote: I'm of the mind that the recent decision from Judge Robert Kramer in California regarding gay marriage in that state is another step in the march towards the eventual breaking down of the societal prohibition on same-sex marriage. One of the arguments I've heard against it is that the "guvmint" will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy "forced" to marry mixed-race couples against their will?-- Edie"A man without doubts is a monster"--Garrison Keillor___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as! private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage? -- a free exercise right?
On Mar 15, 2005, at 9:56 AM, Paul Finkelman wrote: I wonder if the reverse argument has more power. That is: if a church declares that the sacrament of marriage is available to *any* couple willing to accept it, does the minister of that church have a free exercise right *to perform* that marriage ceremony? There are religious bodies in America that do hold that doctrine, that any two consenting, non-consanguineous adults have the right to marry, regardless of gender, gender-identity, age disparity, (provided both parties are of majority) or race disparity. Clergy of those religious bodies do indeed formalize or solemnize same-sex marriages, (sometimes called unions or handfastings) in public and private rituals or ceremonies. However, they (the couple) are prohibited from registering the marriage because they are unable to produce the license signed by the officiant. So, strictly speaking, it's not the clergy's rights being denied. Provided it is in the doctrine of their church, they are free to solemnize a wedding. I've heard an anecdotal account of a gay couple in Rhode Island who were issued a marriage license, based on the fact that they were members of a religion that allowed gay marriage. However, knowing the individual personally as someone who is more a teller of tall tales than a reliable source of information, I doubt it highly. Especially since he himself was the one who supposedly obtained the license. On the other hand, again, anecdotally, there is a couple in Rhode Island who began as male and female, and one of them went through gender reassignment after a legal marriage. They are probably the only same-sex, legally married couple recognized in Rhode Island. Jean Dudley http://jeansvoice.blogspot.com Future Law Student. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rights of clergy regarding same-sex marriage? -- a free exercise right?
Title: Message I continue to think that conducting a marriage ceremony, religious or secular, is constitutionally protected free speech (so long as there is no risk of fraud, which is to say that it's clear to everyone involved, and to those who are likely to hear of the marriage, that the marriage is not legally recognized). It is simply speech, with no noncommunicative impacts that may warrant regulation. While agreements to commit crimes or possibly even to engage in other constitutionally unprotected conduct might be punishable as conspiracy (though the precise theory of that is unclear), I don't see how an agreement to love, honor, and cherish -- and, even if it implicitly includes having sex, to have constitutionally protected sex -- would fit within any such exception, any more than an agreement to spread ideas. Perhaps a marriage ceremony between people who lack the constitutional right to have sex, for instance when one party is a minor, or possibly if the parties are too closely related or one of the parties is still married to someone else, might be seen as somehow aiding and abetting a crime, though I'm skeptical of that. But absent those factors, the marriage ceremony strikes me aspure speech that can't be treated as a criminal conspiracy. This is so even if there is no constitutional right to *marry* members of the same sex (and I think there isn't). The state has no obligation to recognize the marriage. But it seems to me that the simpleconduct of a verbal ceremony can't be outlawed, any more than the conduct of a verbal ceremony in which people pledge to convey Socialist ideas. Thus, the right flows from the Free Speech Clause, and is applicable to the religious and nonreligious alike -- a more appealing result, it seems to me, than a Free Exercise Clause right which would protect religious marriage ceremonies but not secular ones. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul FinkelmanSent: Tuesday, March 15, 2005 6:56 AMTo: Law Religion issues for Law AcademicsSubject: Rights of clergy regarding same-sex marriage? -- a free exercise right? I wonder if the reverse argument has more power. That is: if a church declares that the sacrament of marriage is available to *any* couple willing to accept it, does the minister of that church have a free exercise right *to perform* that marriage ceremony? -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]Ed Darrell wrote: The right to marry doesn't include the right to a church wedding. Pastors, rabbis and other religious leaders who may perform marriages now have relatively wide latitude to say for whom they will or won't perform the ceremony. The couple may get married in a civil ceremony at the courthouse, or with another official presiding at some other location. Traditionally, in the U.S. the problem has not been finding people to perform marriages, but rather to find people who won't perform them when they shouldn't be performed -- underage kids, for example. This latitute allowed to the marriage solemnizers allows marriage performers to use many different reasons to refuse to perform any particular marriage, even unsavory and against-public-policy reasons. Ed Darrell Dallas Jean Dudley [EMAIL PROTECTED] wrote: I'm of the mind that the recent decision from Judge Robert Kramer in California regarding gay marriage in that state is another step in the march towards the eventual breaking down of the societal prohibition on same-sex marriage. One of the arguments I've heard against it is that the "guvmint" will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy "forced" to marry mixed-race couples against their will?-- Edie"A man without doubts is a monster"--Garrison Keillor___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as! private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as
RE: Rights of clergy regarding same-sex marriage?
The Texas Family Code provides, in relevant part: 2.202. Persons Authorized to Conduct Ceremony (a) The following persons are authorized to conduct a marriage ceremony: (1) a licensed or ordained Christian minister or priest; (2) a Jewish rabbi; (3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and (4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state. . . . 2.205. Discrimination in Conducting Marriage Prohibited (a) A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married. (b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office. Read literally, this would mean that even members of the clergy may not discriminate based on race, religion, or national origin. Priests and rabbis would have to conduct interfaith marriages, even if they oppose them. Since Jewish ethnicity is generally seen as a national origin (and in some old statutes, a race), a rabbi who refuses to marry two people because one of them isn't ethnically Jewish would likewise be acting illegally. (As I understand it, many rabbis will marry even Jewish atheists to other Jews, but not non-Jewish atheists; they would thus be discriminating based on Jewish ethnicity/national origin/race, not based on religion as such.) I strongly suspect that sec. 2.205(a) was only intended to cover judges who are authorized to perform marriages, and sec. 2.205(b) supports that interpretation. Still, read literally, the statute does bar discrimination by the clergy in choosing which marriages to conduct. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley Sent: Tuesday, March 15, 2005 2:22 AM To: Law Religion issues for Law Academics Subject: Rights of clergy regarding same-sex marriage? I'm of the mind that the recent decision from Judge Robert Kramer in California regarding gay marriage in that state is another step in the march towards the eventual breaking down of the societal prohibition on same-sex marriage. One of the arguments I've heard against it is that the guvmint will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy forced to marry mixed-race couples against their will? -- Edie A man without doubts is a monster --Garrison Keillor ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rights of clergy regarding same-sex marriage?
Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule [EMAIL PROTECTED] 3/15/2005 12:41:07 PM I've heard (and made) the related argument that, although the government is very unlikely actually to force ministers to perform same-sex marriages, the government may well force ministers to choose between performing same-sex marriages and being stripped of the government function of licensing civil marriages. Evidence of this possibility is the fact that Massachusetts is already forcing this very choice on its Justices of the Peace. Forcing that choice will unquestionably tend to separate the civil and religious marriage functions, but I think there's a genuine question whether that separation creates constitutional problems (Free Ex / substantial burden) or avoids them (Est Cls / Larkin). -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Jean Dudley Sent: Tuesday, March 15, 2005 5:22 AM To: Law Religion issues for Law Academics Subject: Rights of clergy regarding same-sex marriage? I'm of the mind that the recent decision from Judge Robert Kramer in California regarding gay marriage in that state is another step in the march towards the eventual breaking down of the societal prohibition on same-sex marriage. One of the arguments I've heard against it is that the guvmint will force religious leaders to perform same-sex marriages against their conscience. How real is this argument? Are clergy forced to marry mixed-race couples against their will? -- Edie A man without doubts is a monster --Garrison Keillor ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rights of clergy regarding same-sex marriage?
See the attached paragraph from Brady v. Dean, 173 Vt 542,790 A2d 428, a challenge to Vermonts civil union statute. The three town clerks raised a separate claim, asserting that theirobligation under the civil union law to either issue a civil union licenseor to appoint an assistant to do so, see 18 V.S.A. § 5161, contravenedtheir sincerely held religious beliefs, in violation of their right to thefree exercise of religion under Chapter I, Article 3 of the VermontConstitution. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Tuesday, March 15, 2005 1:05 PM To: Law Religion issues for Law Academics Subject: Re: Rights of clergy regarding same-sex marriage? There is a VAST difference in status and relationship to the state between justices of the peace and ministers. As things are, no minister can be required to perform any marriage. E.g., between those of different faiths; between those with whom the minister has no relationship; for any other reason concerning the minister's sense of the wisdom of the marriage. The question could become, though, whether a minister can refuse to marry people on the grounds that they are from different races and still retain the right to marry others -- and whether, if the state can so condition the right to conduct marriages, are same-sex marriages more like race or more like differences of faith? This raises another interesting twist on legislative power in this area of freedom of religion, doesn't it? On Tuesday, March 15, 2005, at 12:41 PM, Anthony Picarello wrote: I've heard (and made) the related argument that, although the government is very unlikely actually to force ministers to perform same-sex marriages, the government may well force ministers to choose between performing same-sex marriages and being stripped of the government function of licensing civil marriages. Evidence of this possibility is the fact that Massachusetts is already forcing this very choice on its Justices of the Peace. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar I have nothing new to teach the world. Truth and nonviolence are as old as the hills. Gandhi ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage?
On Mar 15, 2005, at 1:02 PM, James Maule wrote: Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule Three words: Separate but equal. Marriage is both religious and civil. In contemporary usage, it denotes those who have undergone either civil or religious ceremonies to solemnize their relationship. What you are proposing is a shift away from marriage as a civil right as well as a religious ceremony. Of course, the current model is to my right; Vermont has civil unions as well as marriage. While mixed-gender couples are allowed to have civil unions, same-sex couples are not allowed to have marriages. Further, I'm not sure federal government will recognize civil unions in place of marriage. If they do, I'd be willing to bet they don't extend federal marriage rights to gay couples who have joined civilly. Jean Dudley http://jeansvoice.blogspot.com Future Law Student ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage?
James makes a good point, and should be taken a step further; have the governemtn get out of the marriage business. Let religious institutions perform marriage and have the government regulate civil unions for all people; civil unions are contracts that cover property, child support and rearing, custody, end of life decisions, etc. All the proper jurisdiction of the state; marriage is a relgiious action that should not involve the state. This avoids the separate but equal fear of Jean Dudley Paul Finkelman Jean Dudley wrote: On Mar 15, 2005, at 1:02 PM, James Maule wrote: Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule Three words: Separate but equal. Marriage is both religious and civil. In contemporary usage, it denotes those who have undergone either civil or religious ceremonies to solemnize their relationship. What you are proposing is a shift away from marriage as a civil right as well as a religious ceremony. Of course, the current model is to my right; Vermont has civil unions as well as marriage. While mixed-gender couples are allowed to have civil unions, same-sex couples are not allowed to have marriages. Further, I'm not sure federal government will recognize civil unions in place of marriage. If they do, I'd be willing to bet they don't extend federal marriage rights to gay couples who have joined civilly. Jean Dudley http://jeansvoice.blogspot.com Future Law Student ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage?
Though I am proposing a shift away from marriage as a civil right (and its replacement with something else), I am not proposing a shift away from marriage as a religious ceremony. To the contrary, to the extent states get involved defining marriage it cheapens that sacrament as it stands within churches. Let me explain why. Once upon a time in England (from which our traditions in this respect originate) the only officiating with respect to birth was parish registration (and that was not widespread before the 15th century). It was a recording of the date of the baptism and the names of one or both of the parents. Later, the civil government instituted birth registration (recording date of birth and the names of both parents). Civil servants handled the civil registration, and curates and pastors continued baptisms. They did not stand in as civil registrars. The same pattern developed, though a bit differently in detail, with deaths. (For example, parish registers recorded date of funeral and burial, though some recorded date of death as well). If a church supervised a burial, the information on the death could come from the church, but it could also come from others. Marriage was originally a church matter, a sacrament. Civil involvement was limited to the approval of the crown with respect to certain marriages (and way too much informal, technically illegal interference and lobbying on the part of nobility and royalty with church officials, culminating in the inevitable outcome of Henry VIII's problems). But civil approval was more a matter of family blessing and was not considered to create rights as between the two individuals before the marriage ceremony itself. When the government of England chose to permit marriage outside of churches, instead of moving the entire matter to the civil side as it did with births and deaths, leaving the religious sacraments of baptism and last rites to the church, it instead piggy-backed itself on chuch marriages. Would (should) that have been permitted had there been a FA equivalent in England at the time? I don't see how. Compare, for example, the current practice in France, an outcome of how the Revolution altered the relationship between church and state in that country. So the entangled mess, which came to this country with the English emigrants, remains an entanglement. After all, though there was a church-state dichotomy in the Massachusetts Bay Colony, for all intents and purposes the Puritan ministers controlled marriage. So how could the Framers, dedicated to FA principles, have tolerated the entanglement that exists with respect to marriage? Tradition? No, all sorts of practices that had traditionally been carried on were jettisoned by the Framers. Instead, I think that the answer is in one phrase: regulation of sexual conduct. The civil government appears just as intent as are church governments to regulate who can have legally condoned sex with another person, and although the attempts of both civil and church governments to restrict sexual behavior to marital partners (and to regulate it therein) have for the most part failed, it is with respect to marriage that the last battle over that issue is being fought. Churches and their members are free to define their sacraments and to attach to them whatever theological principles they determine are appropriate. No state can tell a religion who can and cannot receive a sacrament in that church. That's the separate part. If a government chooses to define relationships between individuals, it needs to do so without piggy-backing on churches and church definitions. And the extent to which it is permitted to do so must rest on the extent to which it can regulate sexual activity. Thus, a state can deny marriage to an 11 year old, or to a person lacking mental capacity. Beyond that, if two people wish to enter into legal arrangements with respect to property, taxes, hospital visits, etc., the state can grant a tag (civil union?) to those two individuals (be they man and woman, two men, two women, a parent and child, two siblings, or any other pair who wishes to created a contract, and hence the appeal of the term domestic partnership). Whether two consenting adults choose to engage in sexual activity, within or without the civil union or domestic partnership, is not a matter of property, taxes, hospital visits, or whatever, and the state must leave that be. In other words, the state does not belong in the marriage business, the baptism business, or the memorial service business. And along the same lines, ministers/rabbis/etc should not have rights under civil law to solemnize marriages for civil purposes merely by dint of their being ministers/rabbis/etc. After all, having one's child baptized in a church doesn't satisfy the requirement that the birth be recorded with the state government. So the practice of states adopting the administering of the church sacrament of marriage is another entanglement that
RE: Rights of clergy regarding same-sex marriage?
I was pushing precisely this position on this list about a year ago, and didn't get many takers. I wrote it as an op ed and couldn't place it. Maybe the idea's time is beginning to come. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Tuesday, March 15, 2005 1:05 PM To: Law Religion issues for Law Academics Subject: Re: Rights of clergy regarding same-sex marriage? James makes a good point, and should be taken a step further; have the governemtn get out of the marriage business. Let religious institutions perform marriage and have the government regulate civil unions for all people; civil unions are contracts that cover property, child support and rearing, custody, end of life decisions, etc. All the proper jurisdiction of the state; marriage is a relgiious action that should not involve the state. This avoids the separate but equal fear of Jean Dudley Paul Finkelman Jean Dudley wrote: On Mar 15, 2005, at 1:02 PM, James Maule wrote: Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule Three words: Separate but equal. Marriage is both religious and civil. In contemporary usage, it denotes those who have undergone either civil or religious ceremonies to solemnize their relationship. What you are proposing is a shift away from marriage as a civil right as well as a religious ceremony. Of course, the current model is to my right; Vermont has civil unions as well as marriage. While mixed-gender couples are allowed to have civil unions, same-sex couples are not allowed to have marriages. Further, I'm not sure federal government will recognize civil unions in place of marriage. If they do, I'd be willing to bet they don't extend federal marriage rights to gay couples who have joined civilly. Jean Dudley http://jeansvoice.blogspot.com Future Law Student ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rights of clergy regarding same-sex marriage?
They could still get married; they would go to a church or synagogue for that. And for the nonreligious, Corliss Lamont wrote a secular marriage ceremonoy for the secular humanists; once marriage is privatized, there is nothing to stop secular groups from offering a secular version of marriage, using the same word and entailing whatever degree of moral commitment they choose to instill, without religious trappings. But if privatizing the word "marriage" were the decisivepolitical obstacle, we could at least say "civil marriage" and "religious marriage," and clearly distinguish the two statuses. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Robert K. VischerSent: Tuesday, March 15, 2005 2:13 PMTo: [EMAIL PROTECTED]; Law Religion issues for Law Academics; [EMAIL PROTECTED]Subject: RE: Rights of clergy regarding same-sex marriage? I recently moderated a student-faculty discussion on same-sex marriage here at St. John's, and when I floated the idea that the tension might dissipate if government would recognize civil unions and get out of the marriage business, leaving it to religious communities, the student resistance to that idea was vehement and virtually unanimous. Almost every student favored same-sex marriage, but they also strongly favored the idea of government marriage. As one student explained, "I don't want a government union, I want to be married." Marriage, as marriage, carries a lot of power. The idea of cleanly separating religious marriage from state-recognized relationship is appealing, but a political non-starter, in my view. Rob Vischer -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard DoughertySent: Tuesday, March 15, 2005 2:47 PMTo: [EMAIL PROTECTED]; Law Religion issues for Law AcademicsSubject: Re: Rights of clergy regarding same-sex marriage? Paul, et al: I know others have written about this, but at what point did we come to view marriage as only or primarily a religious action or institution? Surely lots of cultures have had marriages which were not religious (?) And don't many people today want their marriage to be recognized by the state as a marriage, even when they are not religious? Richard Dougherty Paul Finkelman wrote: James makes a good point, and should be taken a step further; have the governemtn get out of the marriage business. Let religious institutions perform marriage and have the government regulate civil unions for all people; civil unions are contracts that cover property, child support and rearing, custody, end of life decisions, etc. All the proper jurisdiction of the state; "marriage" is a relgiious action that should not involve the state. This avoids the "separate but equal" fear of Jean Dudley Paul Finkelman Jean Dudley wrote: On Mar 15, 2005, at 1:02 PM, James Maule wrote: Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule Three words: "Separate but equal". Marriage is both religious and civil. In contemporary usage, it denotes those who have undergone either civil or religious ceremonies to solemnize their relationship. What you are proposing is a shift away from marriage as a civil right as well as a religious ceremony. Of course, the current model is to my right; Vermont has "civil unions" as well as marriage. While mixed-gender couples are allowed to have civil unions, same-sex couples are not allowed to have marriages. Further, I'm not sure federal government will recognize civil unions in place of marriage. If they do, I'd be willing to bet they don't extend federal marriage rights to gay couples who have joined civilly. Jean Dudley http://jeansvoice.blogspot.com Future Law Student ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message t
RE: Rights of clergy regarding same-sex marriage?
What major social reform effectuated through legal change was NOT a political non-starter when it first was proposed? [EMAIL PROTECTED] 3/15/2005 3:12:30 PM I recently moderated a student-faculty discussion on same-sex marriage here at St. John's, and when I floated the idea that the tension might dissipate if government would recognize civil unions and get out of the marriage business, leaving it to religious communities, the student resistance to that idea was vehement and virtually unanimous. Almost every student favored same-sex marriage, but they also strongly favored the idea of government marriage. As one student explained, I don't want a government union, I want to be married. Marriage, as marriage, carries a lot of power. The idea of cleanly separating religious marriage from state-recognized relationship is appealing, but a political non-starter, in my view. Rob Vischer -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard Dougherty Sent: Tuesday, March 15, 2005 2:47 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: Rights of clergy regarding same-sex marriage? Paul, et al: I know others have written about this, but at what point did we come to view marriage as only or primarily a religious action or institution? Surely lots of cultures have had marriages which were not religious (?) And don't many people today want their marriage to be recognized by the state as a marriage, even when they are not religious? Richard Dougherty Paul Finkelman wrote: James makes a good point, and should be taken a step further; have the governemtn get out of the marriage business. Let religious institutions perform marriage and have the government regulate civil unions for all people; civil unions are contracts that cover property, child support and rearing, custody, end of life decisions, etc. All the proper jurisdiction of the state; marriage is a relgiious action that should not involve the state. This avoids the separate but equal fear of Jean Dudley Paul Finkelman Jean Dudley wrote: On Mar 15, 2005, at 1:02 PM, James Maule wrote: Civil birth registration and baptisms/christenings are separate. So, too, are death registrations and funerals/memorial services. Why not separation of marriage and whatever one wants to call state sanctioning of pairing? Jim Maule Three words: Separate but equal. Marriage is both religious and civil. In contemporary usage, it denotes those who have undergone either civil or religious ceremonies to solemnize their relationship. What you are proposing is a shift away from marriage as a civil right as well as a religious ceremony. Of course, the current model is to my right; Vermont has civil unions as well as marriage. While mixed-gender couples are allowed to have civil unions, same-sex couples are not allowed to have marriages. Further, I'm not sure federal government will recognize civil unions in place of marriage. If they do, I'd be willing to bet they don't extend federal marriage rights to gay couples who have joined civilly. Jean Dudley http://jeansvoice.blogspot.com Future Law Student ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages
Re: Rights of clergy regarding same-sex marriage?
My understanding is that marriage was strictly civil until some time in the middle ages. For a long time after the organization of the church, in Europe, couples married themselves with an oral commitment, the verbum. The church took no role. Later the custom arose of having a priest present to testify that the verbum took place. However, marriage was declared a sacrament at the Council of Trent, and then turned back to the state during the Reformation. Marriage is a chiefly a property devising institution through most of recorded history, IMHO. Only after marriage became a sacrament, and then only after marriage for love became more common, have these issues arisen. All of which is a long way of saying I think we err if we start out assuming marriage to be a chiefly religious institution. There are valid, necessary and significant secular issues involved in the relationships. Have Americans not already separated marriage from the church, in large measure? One bridal website I found said there are about 2.4 million marriages in the U.S. annually. I haven't found a comparison, but I'd bet about 60% are outside any church. Does anyone have a bead on more solid statistics? Ed Darrell DallasPaul Finkelman [EMAIL PROTECTED] wrote: I am not sure who the "we" is-- Jews got along fine without state sanctified marriage for centuries; in most of Western Europe up until I suppose in the 17th century in some places and in the age of Napoleon for owthers, marriages were entirely in the hands of the clergy, as was divorce insome places; what the US did was to secularize "marriage" but retain the language that came from religion. I am not sure when that happened; probaby began with the Puritans who on some levels wanted to separate chruch and state but turning some church issues (marriage, birth and death records etc.) over to the state. I have always assumed the French began Civil Unions under Napoleon, leaving "marriage" to the church.Richard Dougherty wrote: Paul, et al: I know others have written about this, but at what point did we com! e to view marriage as only or primarily a religious action or institution? Surely lots of cultures have had marriages which were not religious (?) And don't many people today want their marriage to be recognized by the state as a marriage, even when they are not religious? Richard Dougherty Paul Finkelman wrote: James makes a good point, and should be taken a step further; have thegovernemtn get out of the marriage business. Let religious institutionsperform marriage and have the government regulate civil unions for allpeople; civil unions are contracts that cover property, child supportand rearing, custody, end of life decisions, etc. All the properjurisdiction of the state; "marriage" is a relgiious action that shouldnot involve the state. This avoids the "separate but equal" fear ofJean DudleyPaul FinkelmanJean Dudley wrote:On Mar 15, 2005, at 1:02 PM, James Maule wrote:Civil birth registration and baptisms/christenings are separate. So,too, are death registrations and funerals/memorial services. Why notseparation of marriage and whatever one wants to call state sanctioningof pairing?Jim MauleThree words: "Separate but equal".Marriage is both religious and civil. In contemporary usage, it denotesthose who have undergone either civil or religious ceremonies tosolemnize their relationship. What you are proposing is a shift awayfrom marriage as a civil right as well as a religious ceremony.Of course, the current ! model is to my right; Vermont has "civil unions"as well as marriage. While mixed-gender couples are allowed to havecivil unions, same-sex couples are not allowed to have marriages.Further, I'm not sure federal government will recognize civil unions inplace of marriage. If they do, I'd be willing to bet they don't extendfederal marriage rights to gay couples who have joined civilly.Jean Dudleyhttp://jeansvoice.blogspot.comFuture Law Student___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, seehttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed asprivate. Anyone can subscribe to the list and read messages that areposted; people can read the Web archives; and list members can (rightlyor wrongly) forward the messages to others.--Paul FinkelmanChapman Distinguished ProfessorUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, Oklahoma 74104-2499918-631-3706 (office)918-631-2194 (fax)[EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages ! that are posted; people can read
RE: Rights of clergy regarding same-sex marriage?
Title: RE: Rights of clergy regarding same-sex marriage? In response to the original posting by Jean Dudley, US scholars may be interested in some recent developments elsewhere. Here are some edited snippets from a forthcoming book (by myself and Ian Leigh (Durham University, UK)): CANADA Recently, the Supreme Court of Canada in Reference re Same-Sex Marriage, 2004 SCC 79, [57]-[59], addressed the question of solemnization of marriage in the context of proposed legislation to extend the legal right to marry to same-sex couples. It stated: "The performance of religious rites is a fundamental aspect of religious practice. It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter. . . . [C]oncerns were [also] raised about the compulsory use of sacred places for the celebration of such marriages and about being compelled to otherwise assist in the celebration of same-sex marriages. The reasoning that leads us to conclude that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages suggests that the same would hold for these concerns." UNITED KINGDOM During the passage of the Human Rights Act 1998 through the UK Parliament some religious organizations expressed concern that they may be compelled to solemnize marriages contrary to those organizations' religious convictions. Would, for example, churches be required to conduct marriage ceremonies for divorced persons or same-sex couples? Churches, whilst not generally 'public authorities' in section 6, and thus caught by the Convention, might, in some situations, be deemed to be so where they undertook 'functions of a public nature', marriage being one of those specifically mentioned by the Government. The right to marry in Article 12 of the European Convention might one day redefined as embracing same-sex marriage. Thus, the argument ran, any religious body discharging the public function of solemnizing marriage would be obliged to respect this right to homosexual marriage, despite that body holding religious convictions to the contrary. The Home Secretary, Jack Straw, and the Lord Chancellor, Lord Irvine, sought to reassure worried religious bodies that-despite the possibility of some churches being public authorities for this purpose-this would not be so. The Home Secretary believed Parliament would not require churches to marry same-sex couples and 'the right of any Churchto refuse to marry divorced people remains protected by the Convention'. (Earlier, an explicit amendment to the Human Rights Bill in the House of Lords designed to specifically preserve this aspect of religious group autonomy had failed. The general protection for religious group autonomy in the form of section 13 was, in the Government's view, sufficient. ) In Wallbank, the House of Lords confirmed that, reflecting its status as an established Church, the Church of England may be discharging a public function when conducting burials, keeping registers and, of present interest, celebrating marriages: "when in the course of his pastoral duties the minister marries a couple in the parish church, he may be carrying out a governmental function in a broad sense and so may be regarded as a public authority for the purposes of the 1998 Act." (Aston Cantlow and Wilmcote with Billesley, Parochial Church Council v. Wallbank [2003] UKHL 37; [2004] 1 AC 546, 602 per Lord Rodger of Earlsferry). The Church of England is, it appears, legally obliged to marry couples entitled to marry and resident in the parish. The right to solemnize marriages was to the fore again during the passage of the Gender Recognition Act 2004. This Act represents, in large part, the UK response to the Goodwin case in 2002 (Goodwin v. United Kingdom (2002) 35 EHRR 18), in which the European Court of Human Rights held that the lack of legal recognition given to a post-operative transsexual breached her right to respect for her private life in Article 8 and her right to marry under Article 12. The Act allows a new birth certificate to be issued in the acquired gender and creates a criminal offence if the original birth sex is disclosed by a person who acquired that information in an official capacity. Where the gender recognition certificate is issued the person's gender becomes 'for all purposes' the acquired gender. The Act thus, for example, allows a man to obtain a certificate stating he was born a woman and thereafter enables him to legally marry another man. Various religious groups raised concerns with the potential impact of the Act upon religious freedom. There was the prospect of expensive litigation if churches were required t
RE: Rights of clergy regarding same-sex marriage?
Certainly social reform is coming, but it's already taking a certain form. The movement toward same-sex unions is pretty clearly proceeding down the track of expanding our conception of government marriage, rather than removing the government from marriage. Such a dramatic shift in the object of reform efforts at this stage would require reorienting the entire movement, and the impetus for the reorientation is not obvious. Further, pushing marriage back to religious (and non-religious) mediating communities is not going to erase the culture war tension surrounding the issue. As we see in a variety of contexts, suggesting that the state retreat from contests over religiously shaped conceptions of the good can prove immensely unpopular. Especially in the post-Roe environment, many religious voices (most prominently, but of course not exclusively, evangelicals) are not going to retreat into their respective corners, content to maintain marriage as a religiously pure, but legally marginalized, subculture practice. (In theological terms, the work of Richard John Neuhaus has a much wider following than the work of Stanley Hauerwas.) To be clear, I think it's an attractive idea. I just don't see how it's going to happen. Rob Vischer -Original Message- From: [EMAIL PROTECTED] on behalf of Steven Jamar Sent: Tue 3/15/2005 5:57 PM To: Law Religion issues for Law Academics Cc: Subject: Re: Rights of clergy regarding same-sex marriage? On Tuesday, March 15, 2005, at 04:44 PM, James Maule wrote: What major social reform effectuated through legal change was NOT a political non-starter when it first was proposed? Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it s the only thing that ever has. Margaret Meade [EMAIL PROTECTED] 3/15/2005 3:12:30 PM The idea of cleanly separating religious marriage from state-recognized relationship is appealing, but a political non-starter, in my view. Rob Vischer -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar God, give us grace to accept with serenity the things that cannot be changed, courage to change the things which should be changed, and the wisdom to distinguish the one from the other. Reinhold Neibuhr 1943 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of clergy regarding same-sex marriage?
On Mar 15, 2005, at 2:47 PM, James Maule wrote: Though I am proposing a shift away from marriage as a civil right (and its replacement with something else), I am not proposing a shift away from marriage as a religious ceremony. To the contrary, to the extent states get involved defining marriage it cheapens that sacrament as it stands within churches. Let me explain why. Once upon a time in England While I have studied and deeply appreciate cultural anthropology, I am far from childhood and have learned to recognize condescension when I see it. I am a 45 year old woman, with 9 years active duty in the USN, two marriages, and a 24 year old son. This time I'll assume you're simply using the classic storyteller's narrative device. Next time I'll be less polite. (from which our traditions in this respect originate) No. From which our traditions deviate. Read on, McDuff. (With apologies to Shakespeare) the only officiating with respect to birth was parish registration (and that was not widespread before the 15th century). It was a recording of the date of the baptism and the names of one or both of the parents. Later, the civil government instituted birth registration (recording date of birth and the names of both parents). Civil servants handled the civil registration, and curates and pastors continued baptisms. They did not stand in as civil registrars. The same pattern developed, though a bit differently in detail, with deaths. (For example, parish registers recorded date of funeral and burial, though some recorded date of death as well). If a church supervised a burial, the information on the death could come from the church, but it could also come from others. I have no argument with any of this. Doesn't mean there aren't any, just that I don't have one. Marriage was originally a church matter, a sacrament. Er, hold on a minute. To avoid confusion, why don't we agree to say that at the time of the migration to North America (early 1600s CE for our purposes) marriage was a sacrament of the Anglican church. Prior to that, it had to be incorporated into the doctrine of the sacraments in the Catholic church. Prior to *that*, it was largely a civil affair, with little or no ceremony. I seem to remember reading that a couple would pledge to one another on the steps of the church as a means of making a public commitment. Later, they would ask the blessing of the priest on their union. (Much like Prince Charles and Camilla plan to do.) Civil involvement was limited to the approval of the crown with respect to certain marriages (and way too much informal, technically illegal interference and lobbying on the part of nobility and royalty with church officials, culminating in the inevitable outcome of Henry VIII's problems). Er, you forgot the publication of banns. But civil approval was more a matter of family blessing and was not considered to create rights as between the two individuals before the marriage ceremony itself. When the government of England chose to permit marriage outside of churches, What time frame are you speaking of? You see, it took a long time to get that couple *into* the church in the first place. I daresay that they weren't entirely successful, and unions were established without the benefits of clergy. instead of moving the entire matter to the civil side as it did with births and deaths, leaving the religious sacraments of baptism and last rites to the church, it instead piggy-backed itself on chuch marriages. Um, ok. Would you kindly cite your sources? Would (should) that have been permitted had there been a FA equivalent in England at the time? I don't see how. Compare, for example, the current practice in France, an outcome of how the Revolution altered the relationship between church and state in that country. Alas, I am woefully ignorant of how they do it in France. So the entangled mess, which came to this country with the English emigrants, remains an entanglement. After all, though there was a church-state dichotomy in the Massachusetts Bay Colony, for all intents and purposes the Puritan ministers controlled marriage. Um. Ah. No. Nonononono. With all due respect, sir, this is historically incorrect. In fact, the Puritans of Massachusetts Bay Colony, the Pilgrims of Plimoth, the Anabaptists of Aquidneck, the Baptists of Rhode Island, all held that marriage was in fact a strictly civil affair. The wanted *NOTHING* to do with marriage as a religious rite. Marriages were performed by magistrates ONLY. John Cotton, John Robertson, Gov. Bradford, Roger Williams, Rev. Blackstone, all declared in their writings that marriage was NOT a sacrament. I am willing to cite primary sources, but it will have to wait until tomorrow after my Constitutional Law class, and my corned beef and cabbage luncheon. Remember, the very reason they came to this continent was to leave behind what they felt was apostasy and persecution. They weren't
