Saturday, August 07, 2010

Robert E. Raines On State Power Over the Authority to Solemnize Marriage

The ability to control, or better put to manage, human fertility has been one of the great prizes of institutions seeking power.  There are few societies where this power is not a great object of struggles for dominance among competing governance institutions.  In Europe and the Western Hemisphere, that contest usually pitted the apparatus of institutional religion against those of political societies.  Control of fertility is a powerful political tool, affecting substantial aspects of social, political, cultural and economic life.  It not only provides a means by which the state may control the organization and functioning of the most intimate relations among individuals, but also provides a basis for the drafting of "family units" as a key building block of political, economic and social action. 

Since the 16th century, that struggle has increasingly favored the state apparatus against all rivals.   In places like the United States, that victory was effectuated through a compromise--the state would manage marriage as a political estate, but religious officials might still perform the act in the service pf their religious communities and the state.  But sometimes the state was less generous with religious institutional competitors.  There was a time in Europe, for example, when marriage would not be officially recognized unless registered in accordance with the laws of the particular domestic legal order. For those foregoing compliance with state requirements, their unions would be considered subject to criminal penalties and their children illegitimate (at a time when illegitimacy had profound legal and social consequences).  The  effectiveness of this  state power to use of registers to control individuals has been evidenced by the mockery it has generated in literature and the arts since  the early 19th century.   Gioacchino Rossini's scene in "La Cenerentola" in which the existence of "Cinderella"  could be determined only by reference to the registers in which her birth and death were required to be registered, rather than by her physical presence, is one of many instances of this  popular and literary knowledge of the extent and character of this regulatory power.  La Cenerentola, Act. I Scene 5.

Now my colleague Robert E. Raines Has published an excellent article on the subject, "Marriage in Times of Internet Ministers: I Now Pronounce You Married, But Who Am I to Do So?, " University of Miami Law Review 64(3):809-878 (2010).   In this article, Professor Raines  considers the state of the law in the United States with respect to the regulation of individuals who may solemnize a marriage--who may, through their office, status or position, serve the state as appropriate vehicles for the regulation and availability of the marriage state as a political estate.  His particular focus is on  Internet Churches, particularly the Universal Life Church.  He examines "the decades old, yet still quite current, controversy concerning marriages officiated by ULC ministers, and suggest a solution for states which will avoid legislatures and courts having to answer the difficult--perhaps impossible--question of what is a 'true religion.'"  Raines, supra, at 814. 

Professor Raines identifies fourteen policy problems inherent in this issue.  First, there is the "patchwork of inconsistent judicial decisions regarding the validity of ULC-officiated marriages."  Id., at 834.  Second, there is the problem of the ULC holding itself out as having the legal capacity to marry individuals.  Id., at 834-35.  Third is the inconsistency of state responses to violation of its marriage solemnization laws--from criminalizing that act in Utah to less severe penalties elsewhere.  Id.  Fourth are jurisdictional issues that follow from the availability of marriage outside of physical space.  The Internet has made it possible to arrange multi-jurisdictional marriages without physical presence.  Id.  at 835. Fifth, the ULC ministers actually believe they are legally capable of performing marriages within the requisites of the law of the states in which such marriages are effectuated.  Id.  Sixth, the success of the ULC has given rise to additional Internet or cyberspace religious communities who also assert a power to solemnize marriage. 
The point, of course, is that Internet "churches" no matter what one thinks of them  from a theological or legal perspective, are here, are growing, are likely  to conduct marriage ceremonies for couples who genuinely believe they are getting married, even in jurisdictions where that is clearly not the case, or where the issue has yet to be decided." Id., at 836.  
Seventh, the consequences of these marriages valid within the religious community where celebrated but ineffective within the law-state can be severe.  This is an old issue that once affected the marriage status of immigrants marriages by established Christian Churches but not registered as required by the law of the state where celebrated.   Eighth, those consequences might not be subject to being undone, especially after the death of one of the parties.  Id., at 836. Ninth, those consequences affect third parties as well as the purported celebrants of the marriage now not recognized by the state.  Id., at 837. Tenth, voiding such marriages may have severe retroactive effects.  Id. Eleventh, potential invalidation may produce strategic behavior among the parties and produce severe negative consequences for one or the other party to the void marriage. Id.  Twelfth, that strategic behavior has criminal consequences, for example under the bigamy laws of certain states.  Id.  Thirteenth, perversely, differences between states may produce a result where a person may be deemed unmarried for purposes of criminal prosecution but married for civil purposes, as a consequence of the differential in burdens of proof between civil and criminal matters.  Id.  Lastly, of course, the resulting situation produces an uncertainty that may be politically as well as socially destabilizing.  Id.

Professor Raines would remove states form the business of regulating the capacity of individuals to solemnize a marriage even as the state retains (and perhaps enhances) its authority to control who may enter into marriage , under what circumstances, and the legal requisites for that event.  Id., at 838-841.  
Today, it is difficult to perceive of a valid and enforceable reason for the state to demand a particular marriage methodology for the couple who have obtained a license ensuring their eligibility and intent to marry, so long as the fact of their marriage is then duly registered with the state.  Id., at 840.
Indeed, the question of power ought to be separated from the question of religion not merely as a matter of efficiency and rationality, but also as a matter of constitutional requisites.  A power to manage the officiators of marriage can amount to a regulation of approved religion in ways that are constitutionally suspect.  Since, as Professor Raines notes, one deals here with a matter of power, and since there appears to be no question that this power might remain exclusively with the state for sound reasons of the maintenance of state power over its citizens and residents,  then the issue of the officiator becomes incidental and infused with constitutional difficulties.  Those with research interests int he area will also find the appendix,  listing the relevant state statutes, quite useful.  

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