There may be no better indicator of the schizophrenia currently plaguing the LDS Church these days than the way it approaches marriage.
On the one hand, we are raised to believe that marriage between a man and a woman is a sacred ritual ordained of God; a holy covenant immune from the influence of social trends and political whim. Most of us would agree with this statement by Elder Lance B. Wickman of the Quorum of the Seventy:
"Marriage is neither a matter of politics, nor is it a matter of social policy. Marriage is defined by the Lord Himself. It’s the one institution that is ceremoniously performed by priesthood authority in the temple [and] transcends this world. It is of such profound importance… such a core doctrine of the Gospel of Jesus Christ, of the very purpose of the creation of this earth. One hardly can get past the first page of Genesis without seeing that very clearly. It is not an institution to be tampered with by mankind..."And yet...
The Church routinely permits outside influences to interfere with Mormon weddings.
Let me qualify something before I continue. In a previous post I pointed out that a temple sealing was never meant to be a couple's actual wedding ceremony. A temple sealing represents a priesthood ordinance meant to bind together, for all eternity, a man and a woman whose actual wedding would have properly taken place prior to the sealing ordinance, preferably in an LDS chapel with friends and family present.
But let's set that view aside for a moment, because rightly or wrongly, most of us have been raised to believe in a temple wedding as the ideal. So for now let's acknowledge that your typical young LDS couple will aspire to be married in the temple. And let's further assume that this couple, having proven themselves worthy and kept themselves chaste all the way up until the big day, are looking forward to being joined together as husband and wife under the eyes of God in a core gospel ceremony that, as Elder Wickman accurately phrased it, would be performed by an authority that transcends this world.
Well, not so fast, kids. Did you remember to bring your permission slip?
I am not, of course, referring to this couple's temple recommends. I'm assuming they remembered to bring those. A temple recommend might get you into the temple, but it won't get you married in it. The groom could show up with his pockets full of valid recommends; the bride's entire wedding dress could be made of a thousand recommends sewn together in a modest pattern (including sleeves to cover those enticing shoulders!) and she still would never be allowed to be married under the authority of the holy priesthood of God unless she and her fiance have also brought with them proof that their state government has signed off on that ordinance. They will have to show their marriage license.
We should ask ourselves why that is.
As touched on in my previous two posts, a license is defined as permission to do an act which, without that permission, would be illegal or unlawful. But what in hell's bells is illegal about Mormons getting married under the authority of their own sovereign religion?
You might assume that because a Mormon wedding is a sacred religious ceremony taking place in the House of the Lord under the aegis of the holy priesthood of God, arbitrary government rules regarding the collection of fees and the signing of civil contracts would hold no sway in that venue. And you would be right. Under our constitution, no earthly government has the right to dictate policy to a church.
But there is a valid reason no one in authority in the LDS Church is free to simply marry you according to the tenets of your faith: The Church of Jesus Christ of Latter-day Saints is not a real church.
Oh, it used to be. The Church that was organized by Joseph Smith on April 6th, 1830 had been properly organized under American common law principles, and like every other church in its day, stood independent of, and immune from, governmental interference. But in 1851 Brigham Young directed the territorial legislature to convert the church into a corporation under federal law. That phony "Church" was now a creature of the federal government, and in 1887 the federal government, as was its right, dissolved it and directed federal marshals to seize its assets. We came within an inch of losing Temple Square.
The State giveth, and the State taketh away.
92 years ago this month, Church lawyers convinced President Heber J. Grant to incorporate the church under a model identical to that held by the Catholic Pope. In addition to several unscriptural "improvements" to its operation, this corporate charter legally changed the name of the Church to reflect the executive office held by a man. All this was done in secret without informing the members, who up until then had been the rightful Holders of Interest in the church.
 "How be it my church, Jesus asked rhetorically, "save it be called in my name? If it be called in the name of a man then it be the church of a man."
In the middle part of the last century, leaders of the LDS Church, along with those of many other denominations, were tricked into applying for special 501(c)3 status under Title 26 of the United States code. This status, government lawyers assured them, would provide their churches special benefits, as well as guarantee their churches remained exempt from taxation.
But Churches were already non-taxable, and guaranteed to remain so under the First Amendment to the Constitution. That exclusion is still plainly codified in the government's own Code of Federal Regulations at 26 IRC 508 (c)(1)(A). But Americans in the 1950s tended to trust their government, so when the government began actively promoting a way for churches to better protect their assets, it was an easy sell. Most churches, including our own, willingly signed up.
Well, it was a scam. Known as The Johnson Amendment after its chief promoter, senator and future president Lyndon B. Johnson (according to this guy, the 'B' stands for Butthole), the law had one purpose and one purpose only: to neuter and muzzle America's churches. According to author David Fiorazo:
"Texas Democrat Lyndon B. Johnson was a powerful politician running for reelection as Senator, but two anti-communist, tax-exempt groups were opposing him and passing out literature during the campaigns. He contacted the IRS and found the group’s activity was legal, so he sought other options to fight them.
"Johnson shrewdly appeared on the Senate floor on July 2, 1954, and offered his amendment to a pending, massive, tax code overhaul bill. The bill was supposed to modernize the tax code. Records indicate an absence of committee hearings on the amendment. No legislative analysis took place to examine the effect the bill and the amendment would have, particularly on churches and religious organizations. The amendment was simply created to protect Johnson." (The Cost of Our Silence: Consequences of Christians Taking the Path of Least Resistance.)Under this radical overhaul of the tax code, churches were now restricted as to what could be preached from the pulpit. If they dared talk about the bible as it relates to cultural, political, fiscal, and social issues, they were in danger of losing their tax exempt status. If a pastor preached contrary to what the courts refer to as "fundamental public policy" he was walking a thin line.
If you remember LDS Church leaders preaching vigorously against abortion in the sixties, and you were puzzled when they suddenly seemed to shut up about it following the Supreme Court's decision in Roe v. Wade; or if you wondered why Gordon Hinckley, in his wishy-washy conference talk on the Iraq war did not once reference the many places in our scriptures that clearly prohibit God's people from participating in pre-emptive actions; well now you have your answer. In the LDS Church of today, the revealed word of God is disallowed where it contradicts government practices and policies.
The Church Of Public Policy Of Latter-day Saints
Our leaders have not forgotten the beating the Church took in 1887 when their predecessors were on the losing side of a battle with the feds. As Denver Snuffer documented last year, every major policy change in the Church since then has been the result of the Church bowing to outside pressure. No one really knows where the courts will draw the line on "fundamental public policy" so preaching the gospel with boldness can be risky.
"The IRS determines, subject to costly and time-consuming challenge, whether a restriction has been breached by a 501(c)3 organization. These restrictions subject a religious organization to suit in the courts for violating a federal government law. Fundamental public law is above biblical principle if the two conflict." Jerald Finney, Separation of Church and State: God's Churches: Spiritual or Legal Entities?, pg 37.)Because the LDS Church today is a legal entity and no longer a spiritual one, it's better to avoid making waves.
Remember how, until very recently Church leaders vigorously resisted any hint of accommodation toward homosexuality? And did you notice how quickly the Church began to palliate its position as soon as it became apparent the Supreme Court would be ruling in favor of same-sex marriage? What you're seeing is the Church that used to be directed by Jesus Christ frantically trying not to displease its new master.
Fellow blogger Anonymous Bishop tells of a priesthood meeting he conducted where he, as the bishop, had made an innocuous statement on the importance of standing up for traditional values. After they dismissed, a general authority who happened to be a member of his ward asked to see the bishop in his office. He gave the bishop a very stern look.
"He then proceeded to warn me to 'not get ahead of the Brethren on these issues.' He said, 'Things are changing in the church and it’s important we await further direction from the prophets.' ”One has to ask: further direction from the prophets, or further direction from the State?
The bishop tells how, back in 2008, this same general authority had actively encouraged members in that very ward to do all they could to work for passage of California's Proposition 8, stressing how important it was for the Church and its members to "continue fighting on these eternally important issues."
"But now, only a few years later, the same church leader was warning me, as his bishop, to 'not get ahead of the brethren' as the church 'upgrades' its position."In 1929, in an effort to regulate interracial marriage, Congress passed The Uniform Marriage Act. A key provision of that act provided for the issuance of marriage licenses to all Americans.
The key term here is "provided for." Marriage was still just as much a fundamental right before passage of the act as it was after. Congress did not suddenly make it mandatory for all Americans to apply for a license in order to get married; it did not have that authority. All the act did was create uniformity within all the states for those persons to whom permission might be required. And who were those persons who were required to obtain permission to marry? Those were, unfortunately, persons of mixed races, because at the time no one questioned the propriety of the state regulating marriage between the races.
Of course, white folks were also welcome to stand in line, pay the fee, and ask permission from their government if they wanted to. No state government told them they didn't have to. After all, revenue was revenue. Unsurprisingly, it didn't take more than a generation or two before almost everyone forgot they had a God-given right to wed without permission, and asking permission from the state became a matter of routine. The ramifications of that insidious act would continue to have negative effects on the American family for generations, but at the time the act was first enacted its effects were barely noticeable.
Why The Church Follows Man's Law Instead Of God's
The legal theory as it applies to Mormon weddings is that, because the LDS Church had previously converted to corporate status back in 1923, and continues to receive corporate privileges under 501(c)3 of the Internal Revenue Act of 1954, those privileges require the Church(TM) to comply with fundamental social policy as represented by the Marriage Act.
At least that's the theory. Is it enforceable? I wouldn't know. But whether ultimately enforceable or not, those currently managing the affairs of the LDS Church have chosen to dutifully comply with those provisions.
What this means in practical terms is that before a temple officiator can operate in his capacity as priesthood holder to perform the holy ordinance he has been ordained to, he is first required to act as an agent of the state in which the marriage is taking place. Ask your bishop what would happen if he failed to follow the state's rules regarding marriage licenses. He'll tell you he would be subject to a thousand dollar fine, and the Church would be in danger of losing some of its privileges. Same thing goes for whoever officiates at a temple wedding.
When Church policy gets into a staring contest with Public policy, guess which one is the first to blink?
For some time now, the Church Handbook of Instruction has instructed bishops that "a couple who are planning to be married must obtain a legal marriage license that is valid in the place where the marriage is to be performed." (Emphasis mine.)
At the special entrance to the Salt Lake temple where happy couples-to-be wait in line for admittance on their big day, there is a sign reminding all who enter that they must turn in their government permission slip or their sealing will not take place. No such rule was in effect in the Church when my grandparents were sealed in that temple. But only two generations later, few members even think there is anything odd about that requirement.
It's odder still when you realize that the state of Utah recognizes common law marriage, defined today as marriage without a license. So were it not for the LDS Church's current practice of placing man's law above God's law, there would be little reason for anyone in that state to apply for permission to do what almost everyone in America had been doing without government permission all the way up through 1929.
The bottom line is that our Church has sold us out.
"When a church incorporates, it becomes a 'creature' of the state. Having created the incorporated church, the State governs them via corporate law and public policy, grants and revokes privileges, burdens them, restricts them, penalizes them, and can dissolve them." (Peter Kershaw, "Does the Government Control Our Churches?")So What's The Big Deal?
If your lifetime aspiration was to take your mate to the temple to participate in a sacred covenant with God, God's hands are tied until you first get permission from your state government to go before Him. That is what Church policy is effectively saying. And it raises some intriguing questions:
If a marriage license gives me permission to do something that would otherwise be illegal, when did participating in an ordinance that God ordained become illegal?
Who declared it illegal?
If God has commanded us to marry, why do we need permission from the government?
If I get a marriage license, what does that marriage license give me permission to do that I could not do before I got the marriage license?
Who is giving me that permission?
Where did they get the power to give me that permission?
If I apply for a marriage license, am I giving up any of my fundamental rights?
Where did the first marriage licenses start with in the first place?And the most important question,
If I were to get married without a marriage license, is my marriage still lawful?The answer to that last one, by the way, is yes.
But if you thought your marriage was going to be a sacred partnership between just you, your spouse, and the Lord, think again.
The marriage license, in addition to giving you permission to do something you don't need permission for in the first place, acts as a Contract of Adhesion. That means pretty much what it sounds like: it's a contract with various adhesive requirements that will stick to you forever despite your every attempt to shake them loose. It doesn't matter what ecclesiastical authority you were married under; you're now in a Third Party General Partnership regulated by the Welfare Department of your state.
Normally young couples in love aren't informed that by applying for a marriage license they are waiving their fundamental rights. That was sort of a secret understood mostly by family law judges. But not long ago someone at the Bar Association of the State of Ohio inadvertently spilled the beans in a pamphlet that reads like this:
When you state your marriage vows, you enter into a legal contract. There are three parties to that legal contract: 1) you; 2) your spouse; and 3) the state of Ohio. The state is a party to the contract because, under its laws, you have certain obligations and responsibilities to each other, to any children you may have, and to Ohio.Wait...What's that about my children? And how did I suddenly become obligated to the State just for getting married? And what the heck are those obligations?
Well, for one thing, when you obtain a license to marry from any state, your children are not entirely yours. They belong to that third parent in your marriage, the one that displaced God when you applied for that license.
Some people feel there are plenty of reasons not to enter into a contract without knowing the terms and the possible risks, especially a contract that puts them at a disadvantage. But that's just some people. You might be fine with it.
Apparently there are two kinds of marriages -there might even be three. If I had known 35 years ago what I know now, I would have changed the terms of the contract so that Connie and I and our God were the only ones included in it when we started our family.
The good news is that in spite of what might appear to be the law, any young couple in America contemplating marriage has the right to marry with or without a marriage license. This is America; your right to contract cannot be impaired. It would take more effort than I care to go into here just to list some of the reasons a third party contract might not be the best form of marriage. So I won't even start. Happily, a week or so ago I discovered that someone had posted on YouTube four radio broadcasts from The Law Hour With the late George Gordon. Gordon's fascinating exegesis is both informative and entertaining, and though I found a couple of things he said I would differ with regarding his interpretation of biblical law (you'll know what I mean when he gets to it), on the whole I highly recommend you give it a listen. Click Here.
As for having your initial wedding in the temple without compromising your integrity: for now Church policy would seem to bar that ritual. But so what? As evidenced in my earlier post, Go Ahead And Skip That Temple Wedding, your temple sealing should take place sometime after you've had a church or civil wedding anyway. You shouldn't need to present a marriage license for a sealing, but you will need proof that you've been married. There's no reason you shouldn't be able to present the same form of proof that was provided to Joseph and Emma Smith when they got married: the good old fashioned Certificate of Marriage.
 The Church's Rules for Marriage had been canonized in the first edition of the Doctrine and Covenants, but removed from later editions by Brigham Young for reasons that should be obvious.
Bring Back Common Law Marriage
Common law marriage? Isn't that when a man and a woman are just living together without being married?
Well no. That's called shacking up.
A Common Law Marriage is when two people agree to live together as man and wife. It's pretty much the form every American marriage took from colonial days up until the late 1920s, when politicians in one state after another discovered there were benefits to be had (for them) if they could hornswoggle the populace into signing away their fundamental rights.
A hundred years before that, the 21 year-old founder of our faith had married 22 year-old Emma Hale in a simple common law ceremony that took place in the village of South Bainbridge, New York -a common law settlement in the common law administrative district known as Chenango County. There, Joseph and Emma said their common law vows to each other in the home of one Zachariah Tarbell, Justice of the Peace -a common law office brought to America by the first English to settle here.
And P.S. Justice Tarbell didn't try to sell Joseph and Emma on a marriage license.
 The earliest British immigrants felt the office of Justice of the Peace so essential to society that Justice of the Peace manuals were among the first law books to be written and printed on this continent.
American jurisprudence was founded on the common law of England. Our Declaration of Independence and Constitution are common law documents. We trace our system of justice through English common law, and from there all the way back to the law of Moses. English common law was distilled and refined over centuries of trial and error, as cases were carefully weighed, examined, and held up to scripture; first by priests of the Catholic Church during medieval times, then later by barristers as the Age of Reason evolved into the Age of Enlightenment.
Things did not always turn out well for plaintiffs or defendants, and judgments were at times grossly unfair. But as it all shook out over time, the eventual outcome was a "common" law, a system of justice that, when properly adhered to, protects and defends the liberty of the individual. This is the system of jurisprudence we Americans inherited, passed down from its origins in biblical law and manifested in the kind of justice which, it was hoped, God himself might dispense if he judged a particular matter himself. The Lord "is perfect," went the maxim in Deuteronomy 32, "and all his ways are just." The Common Law seeks to operate in such a just and fair manner.
It came as a surprise to me to learn that marriage was not always considered a religious institution. At the beginning of the Dark Ages, marriage was seen, more or less, as an accepted evil, a necessary way of containing the lusts of the fallen man. Tertullian went so far as to declare that women were the devil's gateway, "the first forsaker of the devine law." Marriage, then, was seen by some as a way of "containing" women. It had not, therefore, occurred to anyone that the Church should be involved in validating weddings. Whatever marriage was, it had nothing to do with religion, so there were few reasons for either the Church or the king to dictate the form a marriage should take. People were pretty much on their own to develop that custom.
So both church and state stayed out of marriage until the 13th century. Eventually some case would arise where it was necessary to determine if a couple actually had been married or not. What is the identifier in such cases? The scriptures were not much help. The wedding at Cana in John chapter 2 was clearly marked by a celebration, but had there been any kind of ceremony? Hard to tell. It was clear from God's interaction with Adam and Eve that their "wedding" was no more complicated than an agreement on the part of the man and the woman to be together. And Genesis 30 tells us that when Jacob selected Bilhah as his wife, he simply "went in unto her" -a no-frills ceremony if there ever was one.
What we think of today as the standard wedding ceremony was far from the norm among the common people of Europe. Occasionally members of the nobility would merge their families through marriages that were almost always arranged for economic and political purposes. Those unions, unlike the weddings of commoners, took place within the walls of a castle or cathedral. Royal weddings came to take on all the trappings of a coronation, complete with some of the elements Americans have adopted today: A squire or "Best Man" on hand for the prince, and several "Maids of Honor" to attend to the princess as she is escorted down the aisle in her elaborate white dress, flower petals strewn in her path. To instill an air of importance to the occasion, a pope or priest in full regalia would be on hand to "solemnize" the union.
Weddings among the common folk in Europe rarely resembled such gaudy affairs. You don't often see the word "ceremony" in primary source descriptions of weddings in those early days. A chronicler in those days would no more use the word ceremony to describe a wedding than you would use ceremony to describe a backyard barbecue. That's because there rarely was much of a ceremony at these weddings. Traditional weddings were more commonly called wedding celebrations, as family and friends would get together to celebrate the young couple's union. If there was a precedent for this type of celebration, it would be the biblical wedding at Cana, which described a feast of celebration.
For untold centuries, all it really took to make a marriage was to have a few people on hand to witness the man and woman committing to the other Per Verba di Praesenti, which means, roughly translated, "spoken in the present time." The groom would say something on the order of "I receive you as mine" followed by the bride repeating the same, "I receive you as mine."
Sometime after the public exchange of words per verba de praesenti, the couple would go off in private to consummate the marriage in the manner of Jacob and Bilhah.
And there you go. You're married. That's all there was to it. The village friar might be on hand to bestow his blessing at your wedding feast, but he did not have any role in performing a ceremony.
And no one was required to get a license.
From Custom To Ritual
By 1215, attitudes toward marriage had changed, and the Holy Roman Church declared marriage to be a Holy Sacrament. So now for a marriage to be valid, the Church decreed all weddings take place at the doorway of the church. But weddings that took place elsewhere were considered equally as valid, so the Church's decree was widely ignored. The basic principle of Christian marriage was that the bond of marriage was created by the consent of the two parties. No ecclesiastical authority was necessary, and it didn't have to take place at church. So as long as the man and woman promised themselves to each other per verba de praesenti,
they were married, with or without witnesses, banns, blessings, or anything else, whether they said the words in a chapel, a kitchen, a field, or a barn, and whether or not they had ever had sex, or taken up residence together. (Stephanie Coontz, Marriage, A History: From Obedence to Intimacy or How Love Conquered Marriage. )Then at the Council of Trent in 1563, the Catholic Church decreed that henceforth, all marriages had to take place in the presence of a priest and two witnesses. Although it had become customary for a couple to take their vows at the door of a church, that had been a custom, not a requirement, and a priest did not have to be present. Now with this new decree, a priest would show up at your house to eat your food and drink your wine whether he was welcome there or not.
Although the requirement of witnesses is a sensible one with roots in biblical law, the part about the priest being present rubbed a lot of protestants the wrong way, because the rule said it had to be a Catholic priest. (The Council of Trent was specifically convened to condemn the principles of Protestantism, so it's no surprise the Protestants balked.)
It's worth noting that even here, the priest's duty was not to perform a wedding ceremony, or even to participate in the event. The prelates still recognized that a wedding was a covenant between the man, the woman, and God. (56 of the prelates had even objected to the ruling.) A priest was not presumed to have any authority to create a sacred union between a man and a woman. That was in God's court, which is why the man and wife said their vows to each other. It was left up to God whether or not God approved of their union.
Lawrence Friedman, author of A History of American Law, writes on pg 203 that the Puritan dissenters could not tolerate this new requirement of hosting a cleric from a religion they despised, "paying him tithes, simply that he might become an invited guest at their wedding." That oppressive act topped the list of things that finally got the Puritans fed up enough to leave England entirely and set sail for the New World.
Good thing the Puritans were already gone by 1763, because they would have really hated the English Marriage Act promulgated that year. This law required all marriages to be performed in facie ecclesiae, literally, "in front of the congregation." In plain language, it meant everyone was now required to have a wedding in church, no exceptions. Any other kind of wedding would be ruled illicit. That meant that any couple who chose to be married outside the church, or simply vowing per verba de Praesenti, a form that had always been lawful, would find their marriage declared invalid, and they would be punished as fornicators.
This was a radical departure from custom, because by the mid 1700s per verba de praesenti, where the man and wife vowed themselves to each other in front of witnesses, had become the norm. It was the the contractual agreement that established a couple as husband and wife. This ritual might occasionally take place in facie eccleisae, but more often it was at home or outdoors where the families were celebrating. The Marriage Act now made Church weddings mandatory.
The Marriage Act was a well intended reaction to the growing problem of clandestine marriages. The Church wanted greater control, and they wanted all marriages registered. Church authorities were losing track of who was married and who was merely "living in sin."
Over time, society had come to settle on certain elements that were understood to mark a marriage as legitimate. These were, by and large, reasonable expectations. Consent of both parties to the marriage was essential of course, and if the couple were under the age of consent, the parents must give their approval. It was also expected that both parties to a marriage be mentally competent to contract. Although no wedding ceremony or celebration was required to be held, there should be at least two witnesses present when the couple contracts to each other per verba de praesenti. Then, from the time those vows are spoken, the couple are expected to cohabit and hold themselves out publicly as husband and wife.
This last attribute is what made marriage a distinctive type of contractual agreement; a marriage is both a very private and a very public affair. Although what goes on within a marriage between two people is considered their business alone, the fact that they are indeed married to each other should be public knowledge. Whenever a valid marriage was contracted in a town or village in England, a record of that marriage was entered into the local church registry.
The First Marriage Licenses
What was odious to many about The Marriage Act of 1763 was that it put all authority over marriage into the hands of the Church. The local priest could then determine who was and who was not worthy to be married. Although many people chafed over the provisions of the act, one feature of the act stemmed from a tradition that was quite reasonable: the Marriage Bann.
That's not what it sounds like. A Bann is nothing more than an announcement. So once a couple had decided to marry, their engagement was announced in church and posted on the church door or some other prominent location, such as at the village square. The next Sunday the announcement was made again, and again the third Sunday. If by then no one had come forth to object, and no other impediment found, the couple could be married.
There were legitimate reasons for a public announcement followed by a waiting period. Someone might come forward with information that the groom was already married and had abandoned his family in some distant locale. Perhaps it would be learned the betrothed couple were too closely related to be lawfully wed. Maybe one or both of the parties was under the age of consent, or (as was the situation in my case) the groom was an imbecile.
After Connie and I became engaged, we published our picture with a notice of our engagement in the Provo Daily Herald. Little did I know that the tradition behind that announcement was to notify one and all that Connie Bradfield was about to get hitched to a moron, so that anyone who knew me personally would have a chance to step forward and warn the bride's family.
The interesting thing about the English marriage banns was that if you didn't want to wait the fifteen days, you could purchase a license from the local priest which allowed you to skip that requirement and get married right away. Once in awhile some member of the upper class would actually pay a priest for one of these licenses, for no other reason than to show off how rich he was.
The biggest problem with the Marriage Act was that it positioned King George II as having the authority to bestow special licenses to churches to "solemnize" marriages. Traditionally the Church had recognized that when it came right down to it, only God had the authority to bind a couple together, which was why marriage vows were spoken by a couple to each other. The priest might stand by and witness the transaction, and he could certainly bless the union, but there was no power vested in him by God. Now here was the king giving the minister authority that even the king didn't have.
The other problem with the Marriage Act was that it imposed upon those who violated it one of the harshest punishments imaginable: they could be shipped off to work in America:
Persons convicted of solemnizing marriage without banns or licenses, or in any other place than in Church as aforesaid are to be transported to "some of His Majesty's Plantations in America for the space of fourteen years, according to the laws in force for transportation of felons." (Otto Erwin Koegel, Common Law Marriage and its Development in the United States, pg 33.)And if you think banishment to America was drastic, the punishment for tampering with the church registry of marriages, or forging an entry, was death. (ibid, pg 34.)
The Marriage Act was a catastrophe because it put serious restrictions on what had always been a fundamental right of the people, overturning hundreds of years of common law tradition. The law was eventually amended by the Civil Marriage Act of 1836, but by then all the smart people in England had moved to America anyway.
Back To The Basics
It might surprise us to learn that over here in the land of the free, the first English settlers, feeling it their duty to safeguard the institution of matrimony, almost immediately enacted laws in the colonies that were every bit as restrictive, if not more so, than they had ever been under the Church in England. It became a universal requirement in all of the colonies except Massachusetts that marriages be solemnized by a minister. This had not been the rule in England, where a priest was merely required to be present. But the colonials were comfortable having a minister conduct their weddings because of their belief that marriage was a religious undertaking. Nevertheless, the penalties for those choosing "self-marriage" in some colonies were extremely harsh.
In Maryland, if a couple were joined by themselves (as had always been the tradition), or by anyone other than a bona fide authority, the fine was "five thousand pounds of tobacco for such offense, to our sovereign Lord the King." (Laws of the Province of Maryland 1692-1718, quoted in Common Law Marriage and its Development in the United States, ibid pg 62.) You were out another five thousand pounds of tobacco if you got married without first posting a bann.
And heaven help the poor colonial couple whose passions got the best of them and they couldn't wait for the minister. If they were discovered in flagrante coniugatio, both boy and girl could expect heavy fines and public whippings. These punishments were unusually harsh for a reason. The city fathers knew they could not invalidate a marriage that had been either physically consummated or verbally promised. A marriage once entered into either by word or by deed was lawful by definition. All they could do was try to make an example out of those who jumped the gun.
This strategy rarely worked. Harsh public punishments only resulted in other couples being extra careful not to get caught. Many, many children born in the colonies arrived sooner than nine months after their parent's actual weddings took place. So if you are a multi-generational American, chances are very good you are descended from bastards.
The strictest of the marriage laws disappeared from the colonies after the Revolution, as Americans became more self-determining. Americans kept the good and sensible elements of marriage that had developed under English common law, and threw out the stuff that didn't work for them. Getting married before a minister or magistrate was now the custom in America, but the rule was not enforced in the courts; marriages transacted without the benefit of clergy were still considered lawful. Frank Gaylord Cook, a disgruntled observer writing in the mid 1800s, lamented the lack of controls on marriage after Americans had won with their independence from England. He remained nostalgic for the harsher, stricter rules that had been in place during the colonial period:
"The colonial statutory system entirely superseded the common law; that system had been destroyed by a Revolution effected through the decisions of the American courts which has introduced into our law much of the insecurity, the irreverence, the license, of the Middle Ages, our common law today being the canon law that existed prior to the Council of Trent. (Frank Gaylord Cook, quoted in History of Marital Institutions, vol 8, at pg 56 in Koegel, supra.)In other words, now that the nation was free from the restrictive influence of Crown and Pope, Americans were exercising their freedom to marry under common law rules that had existed before Church and State had become overly oppressive in England. Americans were becoming more free, and this guy Cook didn't like it. (His use of the word "license" in that context meant "permissiveness" by the way.)
In America, the right to marry who, when, and especially how one wanted, was back in vogue. The recognized authority on common law marriage in America is Chancellor James Kent, whose comprehensive commentaries were published between 1826-1830. Here's an excerpt from section 6 on marriage in America:
No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law. The Roman lawyers strongly inculcated the doctrine, that the very foundation and essence of the contract consisted in consent freely given, by parties competent to contract...If the contract be made per verba de preaesenti...and be followed by consummation, it amounts to a valid marriage. (James Kent, Commentaries on American Law, volume 2, "The Law Concerning the Rights of Persons," Lect 26, "Of the Law Concerning Marriage.")Note Kent's description that a marriage, to be valid, must have two essential characteristics: First, it should be entered into by the man and wife contracting to each other, and secondly, it has to be consummated in order for the process to be complete. Both these elements are traceable to biblical norms. (Recall how Jacob "went in unto" his wife Bilbah).
A marriage that has not been consummated (for those of you not paying attention, that means if the couple has not had sex) the marriage can be annulled by either party if he or she changes her mind and wants to back out before doing the deed. No divorce necessary, because without a physical union between the two parties, no valid marriage exists. In a very real sense, a marriage contract is comparable to any other contract between two parties: The parties come to an agreement to contract with one another, and they seal the deal by shaking hands (wink, wink.)
Note also that Kent affirms as a positive the very principles that curmudgeon Frank Gaylord Cook decried as destroying America circa 1844:
This is the doctrine of the common law, and also the canon law, which governed marriages in England prior to the Marriage Act of 26 Geo II. (Kent, Supra.)In other words, Kent was describing marriages in America as having returned to the proper customs in effect before the Catholic Church stepped in and mucked it all up with it's rules of procedure. Couples in America were free to enter into the marriage covenant as they saw fit and on their own terms.
[ "Jure gentium" simply means that a marriage contracted in one location is valid everywhere else. For instance, a couple who enter into a common law marriage in Utah would still have a valid marriage if they subsequently moved to California.
But Is It Lawful?
This would seem like a good place to take a short digression to discuss the difference between the words "legal" and "lawful." Most of us think those two words are interchangeable, but there is a fine distinction. And there's no topic that better illustrates the difference than the topic of marriage.
Legislatures enact rules of procedure that they wish the people to conform to. If you follow these legal rules step by step, it is said your marriage is legal.
But there are some things you can do without following specific legal rules, such as a private contract between two people. Marriage is such a transaction, because marriage between a man and a woman freely entered into is "not prohibited." Who allows it? God, for one. Thousands of years of human tradition for another.
So a marriage can be both legal and lawful. Or it can be one or the other. If you're still confused, I don't blame you. Most of us spent our lives using those words interchangeably. If you're still unclear, latch onto a legal dictionary and study the meanings of both words, or look up "legal vs lawful" on the internet.
Now, let's remember we're still discussing manners and culture in frontier America, in the days before marriage licenses were common. When we speak of common law marriage today, we usually reference "informal" marriage, or a marriage engaged in without obtaining a license. In frontier America there were no licenses, but there were both "formal" and "informal" marriages. Both kinds were equally valid, and equally lawful.
So when we are talking a "legal" wedding back then, it had nothing to do with filling out forms and paying fees to the county clerk. In frontier America, a wedding might take place in a church with a minister presiding and the couple exchanging vows in front of witnesses. That would be what was known back then as a "legal" wedding because it followed the prescribed legal procedure. It was also considered a "formal" wedding.
But more often than not, "informal marriage" was the rule on this new frontier. After the American Revolution, in a series of important cases, the independent states generally recognized marriages that adhered, in the words of Kent, to "no requisite ceremony." This kind of informal, common law marriage is totally as valid and lawful as the formal kind. Legal scholar Lawrence Friedman explains:
Why was this so? Where did the idea of common law marriage come from, and why did it persist? In some ways, this is an easy question to answer. In many societies, informal marriage is the norm. Informal marriage had deep roots in custom and practice. It was apparently quite common, in the colonial period, for people to "marry" informally. Their neighbors seemed to accept the idea that these marriages were morally, if not legally, sound. One minister in Maryland was said to feel that if such marriages were not valid, then nine-tenths of the people born in his area were bastards.
Most states recognized marriages that were totally informal -with no evidence to back them up and nobody to confirm that the couple had actually exchanged the right words or vows in private. Like all legal doctrines of any importance, the common law marriage was hardly a historical accident. We should ask, then: what use is it? What purpose did it serve?Professor Friedman here is describing "informal" common law marriages. Remember when Joseph and Emma were married at the home of Squire Tarbell? That was an example of a "formal" marriage. But unlike marriages today where most of us are married under the supposed "authority" of a marriage license, Joseph and Emma were of legal age to contract, so there was no need to seek or obtain any third party permission.
Reported cases make the answer fairly clear. Money, land, and inheritance: these were the points at issue. The common law marriage was the device for settling claims to property. It protected "wives" of informal unions and their children when the marriage ended with the death of the husband. That was its major function.
The doctrine of the common law marriage protected the rights of a woman who had lived with a man in a stable relationship. It protected the rights of their children as well. Since common law marriages were completely informal, there was almost never any actual proof of the marriage; judges simply assumed an agreement to marry. If a man and woman lived together, had children, and led respectable lives, if the community thought they were married, then practically speaking they were married. These facts raised the presumption of a common law marriage. (Lawrence M. Friedman, Private Lives: Families, Individuals, and the Law, pg 19-20.)
So if most marriages in early America were contracted under the common law, what was the difference between an informal marriage and a formal marriage? The answer: one little thing that made all the difference:
Evidence of a contract.
You Need That Piece Of Paper
I don't know if historians have ever come across Joseph and Emma Smith's marriage certificate. I've never seen it. Emma Hale's father did not approve of her marrying Joseph Smith, so the two of them eloped, a practice that was quite common at the time. They showed up at the home of Zachariah Tarbell, Justice of the Peace, and for a fee, Tarbell would have agreed to witness their marriage. The declaration below, from the records of a Justice of the Peace in Massachusetts in the early 1880s, gives us a glimpse into the procedure similar to the one likely followed by Zachariah Tarbell to record the marriage of Joseph and Emma:
Be it remembered that on the 17th day of......came before me, J. B. one of the Justices of the Peace for the County of........Henry Mangue and Nancy Neale, when the said Henry Mangue took the said Nancy Neale by her right hand and voluntarily said, I take this Nancy Neale to be my wedded wife, and I promise to do for and conduct towards her in all respects according to the rules of the marriage covenant so long as it shall please God to continue us both in this life--and then let go of her right hand--when the said Nancy Neale immediately took the said Henry Mangue by his right hand, and voluntarily said, (repeating the words before used, mutatis mutandis), of which the proceedings as aforesaid the said Henry Mangue and Nancy Neale required of me the said Justice to make a record, and called upon one S.N. and B.S., then present, to bear witness to the whole proceedings.
Before me, J.B., Justice of the Peace.I find this document intriguing for a couple of reasons. First, the Justice did not perform any kind of wedding ceremony for Henry and Nancy, nor did he pronounce them man and wife. They married each other; the Justice was merely on hand to document the proceedings. Secondly, he noted that the vows were entered into by the man and woman voluntarily. He did not ask the couple questions such as "Do you, Henry, take this woman..." Finally, the Justice made a record of the proceeding which he provided to the couple as evidence of their marriage. He would have also recorded the facts of the proceeding and filed it as a county record.
The role of the magistrate was to be present to witness the transaction, and to then document what he had witnessed. If, some time in the future, there was a question raised whether Joseph and Emma Smith were truly man and wife, Zachariah Tarbell could be called on to confirm that yes, he had been present when the couple had entered into that contract. If necessary, he or a successor could prove the Smiths had been married by producing the documentation in the county's possession. The Smiths also had in their possession their own certificate of marriage signed by that magistrate.
As Professor Friedman points out above, disputes regarding land, money, and inheritance do come up from time to time. Its much easier to prove a formal marriage than an informal one. The proof is in the marriage certificate. That piece of paper is evidence of the contract.
So if a priest, judge, or magistrate isn't the person actually marrying you, why has custom dictated any of them should have anything at all to do with marriage? Good question. And there's a good answer.
In early America, a magistrate had no more authority than a priest to "perform" a wedding. But what he did have was credibility. Priests and magistrates tended to be well known in their communities as trusted men of integrity, which made them credible witnesses. That is why, over time, custom and tradition settled on priests and magistrates to be the ones who, if necessary, could be called on to bear witness to any marriage contracted in their presence. It is for this same reason that priests, magistrates, or other officials were customarily entrusted to keep the records of births, deaths, and marriages.
Somehow in our day, that trust has been misdirected. So today we timidly petition bureaucrats and politicians -a group many people consider a gang of criminals and thieves- to grant us permission to engage in the most sacred and personal religious covenant we'll ever be a part of in our lives. And on top of it, we pay them for the privilege.
 The courts have declared that you cannot be taxed for exercising a fundamental right. Yet the courts have also declared that the fee for a marriage license is a tax. How can that be? It's because through the action of applying for a license, the law assumes you have knowingly and voluntarily waived your right and converted that right into a privilege; and privileges can be taxed. Hence, a marriage license is voluntary. No one forces you to apply for one; you did it voluntarily.
The State Begins To Encroach
Ironically, it was the Puritans, normally thought of as a very religious bunch, who were intent on removing every trace of religion from their marriages. Their experience with the way the Catholic Church had co-opted marriage in England instilled in them an aversion toward any hint of religious control over the institution. They took their lead from Martin Luther, the key protestant reformer:
Marriage, according to Martin Luther, was not a sacrament, but "a secular and outward thing, having to do with wife and children, house and home, and with other matters that belong to the realm of government, all of which have been completely subjected to reason."Colonial Massachusetts, founded by Puritans, enacted detailed civil rules for marriage. But the rest of the nation either considered marriage to be a religious rite outside the sphere of government control, or else they were ambivalent about it.
The New England Puritans took Luther's distinction so seriously that they not only required marriages to be solemnized by a civil magistrate, but in 1647 actually forbade the preaching of a wedding sermon. (Daniel J. Boorstein, The Americans: The Democratic Experience, pg 67.)
Fairly or unfairly, Puritans came to be identified with the kind of people who stuck their noses in other people's business and insisted everyone else conform to their ways. By the 1920s, it seemed all of America was gripped by a collective puritanism that dictated who was to be allowed to be married, and who was not. Those who were suddenly not allowed to marry happened to be people of differing races.
For at least two hundred years in this country, mixed-race marriages were not that unusual. Indians frequently intermarried with whites, as well as with blacks both enslaved and free. President Thomas Jefferson had welcomed the continued intermarriage between whites and Cherokees, hoping it would lead to the assimilation of the Natives into the dominant culture.
"In time you will be as free as we are," the third president had told a delegation of chiefs in 1809; "your blood will mix with ours; and will spread with ours over this great land." (Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848, pg 345)The marriage license laws in America were the evil spawn born of a fear that intermarriage of the races would dilute the purity of American society; but what it proved to do was adulterate a valued religious tradition, as politicians discovered that licensing marriages not only provided a financial windfall, but also a way for state governments to arrogate greater power over the people.
As time passed, intermarriage became less acceptable in white society. A handful of Old Testament verses, most notably Deuteronomy 7:3-4, were used to support bans on marriage between races, when those verses actually have nothing to do with race or skin color. The Israelites had been advised to marry only others within the tribes of Israel because outsiders -"strangers, gentiles, and foreigners"- tended to come from nations who worshiped false gods. The scriptural prohibition against marrying foreigners was intended to keep the religion from being diluted, not the gene pool.
James Madison, widely regarded as the father of the constitution and chief architect of the First Amendment, strongly believed that religion flourishes in greater purity without the aid of Government than with government's assistance; and that a government that is just is one that best protected every citizen in the enjoyment of his religion.
The state marriage license has the opposite effect of what Madison hoped for. Surely a latter-day Saint couple's "enjoyment of religion" is hindered when they wish to take part in their religion's most sacred and meaningful ordinance, only to learn they must first petition their government for permission to do so.
Latter-day Saint Congressman George Hansen, who passed away just last year, wrote that "it's impossible to have religious freedom in any nation where churches are licensed to the government." I met him once where he was speaking at a gathering of Christian ministers who, having realized the disadvantages of church incorporation, were learning how to shed their cloak of government privilege and becoming once again free churches. (This phenomenon of independent churches moving away from church incorporation has been quietly growing since the mid-1980s.)
During a break, I introduced myself to the congressman as a fellow Mormon with a question that had been bothering me, and he found us a quiet corner where we could talk. Hansen was the right man to ask my question of, because he was not only well versed in the Internal Revenue code, but he was also intimately acquainted with several prominent general authorities of the Church (all of whom have also passed away since our meeting).
At the time of that meeting, I was still firmly convinced that Jesus Christ literally directed the leaders of the Church in every decision they made, and I believed the president of the Church talked to the Lord in person on a regular basis. What I was having trouble reconciling, I told the congressman, was how it was possible that the true Church would ever be so foolish as to place itself under the rule of the government by applying for those unnecessary exemptions under section 501(c)3. Other churches were realizing their mistake and getting out, so how come the true church hasn't done the same? Shouldn't we be taking the lead in this?
Looking back, I realize Hansen answered me as gently as he could so as to not shake my testimony of the Brethren. He told me that he was personally aware that some of the leaders understood the problems the church had gotten itself into by incorporating, but not all of them did. There was actually a bit of a rift, he told me, between some members of the Twelve who he labeled as theologically motivated, and others who had come from a background of law, finance, and the professions. The bottom line, he informed me, was that the church seemed to have gotten itself into a situation it did not know how to get out of. He mentioned something about assets and investments the Church was involved in that I knew nothing about at the time, and how those valuable assets could very well be forfeited if the Church gave up its privileged status.
Hansen's answer to my concerns, which I now recognize as a generic non-answer given to someone like me who at the time lacked the capacity to fully understand, was that the leaders felt that at this time the most important thing for the Church to be engaged in is spreading the gospel. If it were to bring attention to itself by creating a controversy between the Church and the government, that would detract from its true mission.
Of course, knowing what I know now, that kind of answer would not satisfy me today. But there is still some truth in it, if you turn the answer inside out. The corporate Church could easily transform itself back into a church again if the leaders would simply follow Christ's admonition to sell off its assets -at least those dubious investment assets a church has no business being involved with, such as high rise office buildings, condominiums, shopping centers, and massive housing developments- then use the proceeds of those sales to help the poor and needy. The Church would bring attention to itself alright, but I don't think that kind of attention would detract from its true mission.
The Church can dis-incorporate any time it chooses. If it did, our people would once again have the freedom to practice their religion before God unencumbered.
It could happen. But I won't be holding my breath.
Further Reading and Viewing:
For those wishing to pursue this subject further, a handful of legal scholars have published briefs and memorandums advocating America's return to common law marriage on a wider scale, most notably Sonya C. Garza's Common Law Marriage: A Proposal For a Dying Doctrine. Professor Cynthia Bowman of Cornell University's School of Law, in addition to providing an outline of the history of common law marriage, offers a compelling argument for its return in A Feminist Proposal To Bring Back Common Law Marriage.
All Up In Yo' Business: Debunking Common Law Marriage is a quick five minute video presented by a law office in Colorado (a state where common law marriage is currently recognized), describing how common law marriage is a real, actual marriage, and not to be confused with a couple living together outside of matrimony. Although only a handful of states officially sanction common law marriage, Christian couples in every state continue to Get Married Without a License all the time. Here's one couple who show How They Did It.
One book I relied heavily on for this post is Otto Koegel's Common Law Marriage and its Development in the United States, which has stood as the definitive work on the subject for decades. Published in 1922, the book was hard to find until someone recently offered inexpensive reprints. Several years ago I had to trudge down to the law library to read that dusty volume, and now I have a copy of my own I got from Amazon for around eight bucks. (You can still buy a rare original, but they sell for over two thousand dollars.)
As a point of interest, Koegel's groundbreaking work was the definitive history of common law marriage, but Koegel actually advocated for abolishing the practice in favor of marriage licenses. As a member of The Committee on Mental Defectives, (their motto: "To Better The Breed of Men"), Koegel was an elitist who favored weeding out genetic inferiors from society. Like many others in his day (Adolph Hitler, for one), Koegel pushed for racial and genetic purity, and saw the marriage license as an important method toward that end. (Aside from that, Otto Koegel's book is a very good resource.)
Koegel's research has now been superseded by a a more recent 1200-plus page textbook, Common Law Marriage: A Legal Institution for Cohabitation. This book sells for $160.00, so I won't be buying a copy anytime soon. It examines hundreds of cases on common law marriage, so if you're interested in pursuing the subject deeper, you can probably find it at your county law library.
Regarding the nexus of marriage and church incorporation, I've included links to several excellent books within the post above. There are also plenty of competent online resources. I'd start with the articles at Hushmoney. Here also is a well-documented 52 page memorandum, The Crisis of Church Incorporation by Brook Stockton. You can also watch an excellent YouTube video with Peter Kershaw giving an overview on how churches are taking back their proper status, "Does The Government Control Our Churches?" Or this one that explains how, with your application of a state marriage license, the State becomes The Mother-in-Law You Never Wanted.
Finally, I wouldn't want you to miss what George Gordon had to say about the marriage license on The Law Hour.
The ancient Israelites, a once free people because God was their only ruler, One Day Went to the Prophet Samuel and told him they were tired of being a peculiar people; they wanted to be like all the other nations, with a king to rule over them. The Lord told Samuel to tell the people they can have whatever form of oppressive government they want, but they should be careful what they wish for.