The banns of marriage and the law of the land

As the Supreme Court concluded hearing oral arguments about marriage equality today, I've been asked to offer comments by a number of people.

Allow me to step back a few paces and point out that marriage licenses began at the behest of the Church of England, which was having a whale of a time enforcing monogamy standards in a maritime nation (sailors seemed to have wives in every port).

The Church tried to enforce its moral standards through the “banns of marriage,” an announcement done three Sundays in a row that so-and-so intended to be married; the idea being it would surface a wife. The strategy didn't work, and so the Church asked Parliament to license marriages. The concept was transported to the colonies where it is now a part of our law in the United States. In other words, it is our church that got government into the marriage business in the first place. By the way, Pastor Heather Warren explored this history in great detail at a series of forums in 2011. You can read all of our material HERE.

As a priest in a church, when I preside at a wedding I am also acting as an agent of the state, which is a complete blur of the separation of church and state. It is also raises the question of why one of the sacraments of the Church – Holy Matrimony – is licensed by the state. Baptism and Eucharist are not, but marriage is. Were it up to me, marriage would be a private contract between consenting parties, and the church would be entirely out of the legalities.

I made that argument about a year ago at a panel discussion at the University of Virginia School of Law. One of the panelists pointed out that the difficulty with my argument is that marriage law has provided a common and predictable set of legal guidelines that ordinary people can follow. To make marriage entirely a private contractual arrangement might require people to hire lawyers to get married.

The solution, it seems to me, is to get religion out of the legal marriage business. Those who wish to form a legal union of their relationship, with all the rights and privileges thereto, could go to the courthouse to seal their contract as civil marriage. It wouldn’t matter whether they were same-sex couples or opposite-sex couples. Then if they wished to have their union blessed as marriage, churches and other religious institutions could decide whether they could bless such relationships. Church and state would remain separate, and blessings would remain entirely religious. Each religion could interpret religious law as it sees fit.

And I would not be acting on behalf of the state.

By James Richardson, Fiat Lux