Hacking the Law: The Role of the Marriage Officiant in the State of Washington | Hacker News Reader

Hacking the Law: The Role of the Marriage Officiant in the State of Washington

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18 pointsbrudgers14 comments

The government doesn't create marriage, it merely recognizes it, and provides useful services like ensuring bigamy or incest doesn't take place. It surprises no-one that the bride and groom entering (and consummating) the marriage is the essential part, the ritual is the part that signifies the marriage has happened, and the particulars of the person presiding over the ceremony carry no significance at all.

I feel like this is generally in line with estoppel. If you have been acting like the marriage is valid, you don't want the law to give an opportunity for one of the people to say "jk lol that minister was fake" and get out of their responsibilities, especially if it would let them bypass the division of property from an actual divorce. While this seems to be codified explicitly for marriage, my (layman) understanding is that this sort of thing is true in general: if people have been acting like a certain thing is true, and it would be unjust to follow the letter of the law retroactively, you don't get to use the law to facilitate injustice, if it doesn't bring about any justice to you.

New York has a law that you can change your name at any time to anything simply by using a new name without intent to defraud. There are procedures for changing your name, including, oddly enough, restricted procedures on how you can change your last name at marriage (you can't pick a brand new last name; it has to be one or the other, or a hyphenated or smashed-together version). But if you just start using a new name, there is the self-referential authorization to use a new name simply because you're using it non-fraudulently.

It's not just Washington; this is basically the same as in Illinois, for instance. (I performed a wedding for friends this past summer in Chicago, so I investigated. :) The bit about validity is really a good idea, because it's a protection for the people getting married.

I think that something like this is true in most states, actually. The Universal Life Church wouldn't work if it weren't.

In New York, there's case law that ULC ministers don't meet the statutory qualifications for a marriage officiant, and therefore marriages in New York before ULC ministers are invalid.

But the case in point involved a marriage outside the state, invalid under local law. The city clerk of NYC still registers ULC ministers as officiants and still accepts marriage licenses from them, so the case law is meaningless unless someone raises it in the divorce case.

Sounds like this was just passed down without via religious institutions, then stripped of authority to make it sane for government. Probably no one bothering to remove the officiant as it doesn't really impact anyone? What happens if you don't even involve an officiant and just send them a copy of the form?

One of Pennsylvania's few vestiges of Quaker law is the self-uniting marriage[0]: a couple can enter into marriage simply by mutual consenting to marry and having two witnesses. I married this way and it was delightfully civilized.

[0] https://en.wikipedia.org/wiki/Self-uniting_marriage

"Congress shall make no law respecting an establishment of religion, ..."[0]

Why would the state be deciding who is qualified to be an officiant?

For civil purposes, think of the officiant as an additional witness or co-signer of the license - more like a notary public or master/mistress-of-ceremony than as someone designated by some external entity to perform weddings.

For religious purposes, consult your entity, or their designee.

[0] currently contested in Rowan County, Kentucky, sigh.

The answer lies in your question. State =\= Congress.

The 14th Amendment has been held to apply the First Amendment against the states. And even in the likely event that incorporation gets overturned, most state constitutions have their own establishment clauses.

What bbanyc said, for details see:

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...

and

http://leg.wa.gov/LawsAndAgencyRules/pages/constitution.aspx

My proposed solution to the whole mess is to separate the Marriage and the Partnership. Let people get Married in accordance with their religious or social practices as they desire but it holds no legal standing. Then, have the State offer some sort of Partnership entities ("Domestic Partnership"?) like an LLP or Corporation that handles the financial and legal responsibilities of the union. People could choose to engage in one or the other or both, but they're separate things. It seems like it'd solve a lot of the conflicts we're seeing.

> establishment of religion

If you're going to quote the First Amendment, it's worth knowing what it says. An "establishment of religion" is a state church, like the Church of England -- the example the framers had in mind, the cause of lots of settlement in the colonies, and an institution that the British monarch is still head of today. Half of the House of Lords are "Lords Spiritual." The coronation ceremony involves an Anglican mass. And it's more than just ritual: as late as 1936, Edward VIII abdicated the crown because he wanted to marry a divorcee, and it was inappropriate for the leader of the Church of England to go against its teachings.

Or take Finland, where the two state churches (the Evangelical Lutheran one and the Orthodox one) facilitate government records of population, in the equivalent of the census, and members of either church (you have to resign membership by a legal process) and also corporations pay a church tax. Or Denmark, whose constitution states, "The Evangelical Lutheran Church shall be the Established Church of Denmark, and as such shall be supported by the State." Or any number of other European countries with church taxes or established churches -- not to mention other parts of the world, such as the Islamic republics.

The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion."

> The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion."

Let's consider that a state (nation-state or US state) might recognize 0, 1, or N religions.

There are many nation-states with 1 or N state-recognized religions, as you point out, but a US state that recognizes any number of religions other than 0 is effectively, in many senses, establishing that set of religions, and excluding any others.

Officiating at weddings is a very light-weight form of recognition compared to tax exemptions, or to religious requirements to hold public office.

My preference for the US would be to keep government out of religion, and religion out of government, keeping that number at 0.

> There are many nation-states with 1 or N state-recognized religions, as you point out

No, I'm taking about state religions, not merely state-recognized religions. These are different. There's only one established religion in the UK, the Church of England, but it is absolutely possible to have your marriage officiated by a non-Anglican or even non-Christian minister. It would be completely wrong to claim that the Roman Catholic Church has been an established church in the UK ever since the Marriage Act 1836 allowed its priests to officiate marriages, or that the CoE is now disestablished because the CoE doesn't permit gay marriage but gay couples can get legally married in other churches. Finland is another example; there are exactly two state churches but dozens of "registered" churches where one may marry.

There is, of course, an extension to be read into that part of the Constitution about not favoring a church in governance; it's sort of the same way the Constitution has an unwritten right to privacy. But you can only read it in so far. It is not a constitutional prohibition on the recognition of churches, just on the establishment of churches. That word had a very specific meaning separate from "recognition" in 1789; it is a testament to the success of that amendment that we in the US have forgotten what it means.

It is worth noting that while everyone who wrote that amendment was still around and deeply involved, Congress wrote this resolution (http://memory.loc.gov/ll/llac/001/0000/00160025.gif):

"Resolved, that after the oath shall have been administered to the President, he, attended by the Vice President, and members of the Senate, and House of Representatives, proceed to St. Paul's Chapel, to hear divine service, to be performed by the Chaplain of Congress already appointed."

And nobody thought that respected an establishment of religion.

(This is not to say, btw, that I personally agree with all of our current policies. I'd very much like to see us further disentangle legal marriage from religious marriage. I just don't think we have anything close to a Constitutional obligation to do so, and we should do so because we the people want to. Being fortunate enough not to have an established church, we also have no Constitutional obligation to stick with the present system, either.)

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