Welcome to Knapp Petersen & Clarke - Publications

The historical tension between religious and secular law has greatly influenced the evolution of law in western society. Prior to the eleventh century, divinely empowered emperors and kings freely promulgated “new theoretical doctrine and ecclesiastical law.” But in 1075, Pope Gregory VII proclaimed the independence of the Catholic Church and announced the authority of the Church to create a cohesive body of religious law. The kings of Europe reacted by developing competing secular law systems. Marriage, a timely topic today, remained under the jurisdiction of the Church, as marriage was considered a sacrament.[1]

The Lutherans, as part of the Protestant Reformation, which began in 1517, developed the “social model” of marriage, in which marriage was considered a social estate of the earthly kingdom, as opposed to a sacred state of the heavenly kingdom. The state was given jurisdiction over marriage under civil law. This model rejected marriage as a sacrament; marriage was nonetheless regarded as “divinely ordained.”

In Calvinist communities, citizens, magistrates, and the clergy were all seen as being responsible for the function of the covenant and the enforcement of the appurtenant laws creating a mixed jurisdiction over marriage.

King Henry VIII of England formally split with the Catholic Church in 1534 and became the supreme head of the Church of England when Parliament passed the Act of Supremacy. After the Reformation (1533–1540), various Protestant groups developed their own laws, particularly those concerning marriage. The Anglican model of marriage, as it developed between 1540 and 1640, was recognized in much of colonial America and formed the basis for the current marriage laws in the United States. Anglican marriage law was seen as “appointed by God” and merged canon law into the common law under the English monarchy. Thus, marriage existed simultaneously in both secular and religious spheres. Since the Anglican Church was the official church of England, jurisdiction was left to church courts, which were ultimately overseen by the Crown. Official state control of the institution of marriage was completed with the 1753 Parliamentary Act for the Better Preventing of Clandestine Marriage, which sought to end clandestine marriage, a practice used in particular to avoid public banns, licensing fees, taxes, and church consecration of marriages. Lord Harwicke’s Act, as it is better known, required formal licensing, witnesses, and consecration by the Anglican Church.[2]

The new American states retained much of the traditional common law, especially in the field of marriage, but the involvement of religion in marriage was explicitly limited by the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Yet despite the erection of a Constitutional barrier between the secular and religious, when courts have been forced to defend marriage laws, they have continued to cite scripture and canon law.[3]

The topic is particularly timely in California because of the California Supreme Court’s recent four-three decision in In re Marriage Cases, where the Court validated same-gender marriage by defining marriage as “the right of an individual to establish a legally recognized family with the person of one’s choice.” The decision did not turn on freedom of religion, or from religion, but on equal protection. The state failed to demonstrate a compelling interest in the disparate treatment of same-gender couples. But the reaction to this decision, including Proposition 8 on the November ballot, is indisputably religiously driven. Among the organizations backing Proposition 8 are Active Christian Media, Advocates for Faith and Freedom, Agudath Israel of California, Associated Christian Schools International, Bethel Baptist Academy, Brethren in Christ Church, Brigham Young University, and the California Catholic Conference of Bishops (in alphabetical order, and that just gets you to the “Cs”). The historical tension is alive and well.

In present-day United States, the secular rights that attach to the civil marital contract are numerous. In fact, there are “1049 protections and responsibilities accorded married people under federal law.”[4] Laws relating to title and survivorship, probate, adoption, health benefits, advance directives, workers’ compensation benefits, and others, are but some of those that are generally included in this quite expansive bundle of rights.

Marriage has sometimes been said to be contractual in nature. In this regard, it has variously been stated that by law, marriage is a contract, and that it is a civil contract, analogous to a partnership agreement, between parties with the capacity to contract for such marriage…[i]t has also been stated that marriage is a three-party contract between [the couple] and the state.[5]

The marital contract is valid under the laws of the states and usually only after a marriage license is granted and the marriage is solemnized.[6] The Corpus Juris Secundum states that: “[s]tatutes usually provide that members of the clergy shall be authorized to solemnize marriages…. Unless a statute expressly provides to the contrary, the authority conferred on members of the clergy… is merely permissive and they are not required to do so.”[7] In Texas, the list of persons authorized to conduct a marriage ceremony include Christian ministers or priests, Jewish rabbis, officers of religious organizations that are authorized to conduct marriages by the organization, and justices or judges within the state.[8] Similarly, in New York, marriage is clearly defined as a civil contract and can be solemnized by a clergyman, mayor, or judge.[9]

But the collision of “religion” and “freedom of religion” first reached the Supreme Court in the sphere of public education. Everson v. Board of Education concerned the use of municipal funds for the transportation of students to and from parochial schools. Justice Black cited James Madison for the proposition that religion is not in need of the support of the law, that the people who believe are there to support and uphold it, and those who do not are free to do so. Justice Rutledge, writing in dissent, also emphasized the views of Madison: “Madison opposed every form and degree of official relation between religion and civil authority. For him, religion was a wholly private matter beyond the scope of civil power either to restrain or to support.”

In addressing the question as to whether the New Jersey statute was a “law respecting an establishment of religion,” the Court detailed the historical reasoning behind the Establishment Clause and came to the conclusion that:

[T]he “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and state.”

In McCollum v. Board of Ed., the Court struck down a decision allowing clergy to provide religious instruction within public schools. Religious instruction on school premises was deemed to be a governmental usurpation of the function of religion, in that the school was providing for the religious instruction. As such, the Court deemed the situation to be “beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.” The Court again stated that the First Amendment is based upon the “premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”

In Lee v. Weisman, a parent of a public school student brought suit seeking to have the practice of clergy-led prayer in school graduation ceremonies permanently enjoined. The District Court stated that the “practice of including invocations and benedictions, even nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion…” and as such was in violation of the Establishment Clause. The Supreme Court opined that “though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake the task for itself.”

Justice Kennedy wrote: “Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions.”

The same, of course, could be said about marriage. Indeed, as stated in Loving v. Virginia, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving struck down Virginia’s statute forbidding interracial marriage.

Today, the tension between a secular view of government and one that promotes the tenets of a particular religion is very much in the forefront of the November election. Once again, we are reminded, in the words of Ecclesiastes, “. . . there is nothing new under the sun.”

Ms. Freeman is a Director in the firm’s Insurance Coverage and Appellate Departments. Email: gf@kpclegal.com.

Mr. Carr is a recent graduate of Seton Hall School of Law and is interning with the firm while awaiting bar results.

[1] Alan Keenan, O.F.M. & John Ryan, F.R.C.S.E., Marriage: A Medical and Sacramental Study 58 (Sheed and Ward, New York 1955).

[2] John Witte, Jr., From Sacrament to Contract: Marriage, Religion, and Law in The Western Tradition 4 (Westminster John Knox Press, Louisville, Kentucky 1997).
[3] Emily Taylor, Across the Board: The Dismantling of Marriage in Favor of Universal Civil Union Laws, 28 Ohio N.U. L. Rev. 171, 177 (2001). Quoting Caminetti v. United States, 242 U.S. 470, 487 (1917) and Murphy v. Ramsey, 114 U.S. 15, 45 (1885).
[4] Randall Blandin, Baker v. Vermont: The Vermont State Supreme Court Held That Denying Same-Sex Couples The Benefits And Privileges Of Marriage Is Unconstitutional, 9 Law & Sexuality 349, 372 (2000).
[5] Mitchell Waldman, Marriage, 52 Am. Jur. 2d Marriage §4 (2005).
[6] See, eg. McKinney’s Consolidated Laws of New York Annotated Domestic Relations Law, Chapter 14, Article 3 – Solemnization, Proof and Effect of Marriage, §13. Marriage Licenses. McKinney’s DRL §13.
[7] 55 C.J.S. Marriage §31 (2005).
[8] Tex. Fam. Code Ann. §2.202 (1997).
[9] N.Y. Dom. Rel. §10 (1999).