Marriage

Legal Developments

Nebraska Case Underscores Importance of Knowing and Understanding State Marriage Laws

Ministers who ordain a marriage that results in a bigamous relationship can face criminal sanctions.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-04 . All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

The Nebraska Supreme Court ruled that where a Nebraska marriage license was obtained, but one of the participants was already legally married to someone else, a bigamy prosecution was still proper.

Background

On June 29, 2015, a man (the “defendant”) completed a marriage worksheet at a local county clerk’s office in Nebraska and paid the requisite fee. A clerk watched the defendant and “Wife 1” sign a Nebraska marriage license and notarized their signatures. On July 4, 2015, the defendant’s sister, an ordained minister, performed a wedding ceremony for the couple in Texas.

The defendant’s sister signed a “marriage certificate,” but she did not sign or return the Nebraska marriage license. The defendant’s sister claimed that she later threw away the marriage license at the defendant’s request. The couple returned to Nebraska and resided together. Over the next few weeks, Wife 1 contacted the clerk on several occasions to inquire whether the marriage license had been returned.

Wife 1 informed the clerk that, although she was able to change her surname with the Social Security Administration using the marriage certificate, she wanted a certified copy of the marriage license in order to change her information with the Nebraska Department of Motor Vehicles.

During this timeframe, the couple had an “on again–off again relationship.” At one point, the defendant told the clerk that he did not want to be married and inquired how to “prevent the marriage from going through.” The clerk responded that “if they had already filled out the documentation and had the ceremony, they were married.”

In late 2016 or early 2017, the clerk notified the records administrator of the county clerk’s office that the marriage license between the defendant and Wife 1 had not been filed.

When the records administrator determined that no marriage license was filed for the 2015 marriage, she called the defendant’s sister and informed her that a replacement marriage license would be sent, which needed to be signed and returned. The defendant and Wife 1 returned to the county clerk’s office, signed a copy of the replacement marriage license, and had the clerk notarize their signatures.

Subsequently, the marriage license was returned and filed with the county clerk’s office in January 2017. The license contained signatures of the defendant’s sister and two witnesses. It stated that the defendant and Wife 1 were married on July 4, 2015, in Nebraska.

In May 2018, the defendant moved out of the residence he shared with Wife 1. Screenshots of text messages between them, some of which were sent around this time, showed that the defendant referred to himself as Wife 1’s husband and to her as his wife.

On November 5, 2018, the clerk received a marriage worksheet for the defendant and another woman (“Wife 2”). On November 16, 2018, a signed marriage license was filed with the county clerk’s office showing that the defendant married Wife 2 on November 15, 2018.

In 2019, Wife 1 attempted to file her income taxes as married filing jointly with the defendant.

The Internal Revenue Service notified her that she could not do so because the defendant had filed income taxes as married filing jointly with Wife 2. Wife 1 notified the police department, and an investigation uncovered two marriage certificates on file at the county clerk’s office but no intervening divorce.

When a police officer spoke with the defendant, he said that he and Wife 1 were going to get married but never did.

The defendant was convicted of bigamy

The state charged the defendant with bigamy, contending that when he married Wife 2 he was already married to Wife 1. Defense counsel argued that the defendant’s marriage to Wife 1 was not a valid marriage because it did not comply with statutes in Nebraska or Texas.

The trial court noted that there were only two requirements for a valid marriage under Nebraska law: a marriage license and solemnization of the marriage by a person authorized by law to solemnize marriages.

The court concluded that “the evidence unequivocally validated” the defendant’s marriage to Wife 1, making him guilty of bigamy. He was sentenced to 30 days in jail. He appealed his conviction directly to the Nebraska Supreme Court.

Court: Marriage records support bigamy charge

The supreme court began its opinion by quoting the following definition of bigamy under Nebraska law:

If any married person, having a husband or wife living, shall marry any other person, he shall be deemed guilty of bigamy, unless … it appears that at the time of the subsequent marriage:

(a) The accused reasonably believes that the prior spouse is dead; or

(b) The prior spouse had been continually absent for a period of five years during which the accused did not know the prior spouse to be alive; or

(c) The accused reasonably believed that he was legally eligible to remarry.

The court explained the importance of banning bigamy:

“Bigamy ‘destroys the happiness of families and social order; it places the stigma of illegitimacy upon innocent children; it complicates and prevents the regular descent of property, and deprives the unoffending of their rightful inheritance.’”

The defendant argued before the supreme court that his first marriage was invalid since its solemnization occurred in Texas rather than Nebraska. His argument primarily rested upon a Nebraska statute that states, “Prior to the solemnization of any marriage in this state, a license for that purpose shall be obtained from a county clerk in the State of Nebraska.” Reading this language together, he claimed “that for a marriage based upon a Nebraska license to be valid, it must be solemnized in Nebraska—in other words, the solemnization in Texas rendered his marriage invalid in Nebraska.” In rejecting this argument, the court observed:

Marriage as a social institution is favored by public policy, and the law raises a strong presumption in favor of its legality. …

Here, the marriage ceremony occurred in Texas. Although one Texas statute requires a Texas marriage license, another provides that the validity of a marriage is generally not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license. And Texas has declared that its policy is “to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.”

The court concluded:

[T]here are two essential elements of bigamy. Under the circumstances here, the State had to prove beyond a reasonable doubt (1) that the defendant was a “married person” with a wife living and (2) that he married another person.

The State proved the essential elements of bigamy. It adduced two documents titled “License and Certificate of Marriage” from the Nebraska Department of Health and Human Services’ vital records office, each showing that the ceremony occurred in [Nebraska]. One was filed in January 2017 in the names of [the defendant and Wife 1] and showed a July 2015 ceremony date and the other was filed in November 2018 in the names of [the defendant and Wife 2]. These records are presumptive evidence of the fact of such marriages. The State produced evidence that there was no record the defendant divorced [Wife 1] prior to his marriage to [Wife 2]. …

[The defendant and Wife 1] acquired a marriage license and participated in a wedding ceremony performed by [the defendant’s] sister, an ordained minister. After those events, when the defendant inquired as to how to “prevent the marriage from going through,” he was told by an employee at the [county] clerk’s office that he was married if he already filled out the marriage license and had the ceremony. The evidence showed that after having been informed of the effect of obtaining a license and participating in a marriage ceremony, [the defendant] referred to [Wife 1] as his wife. When, over [one] year after the ceremony, it was discovered that the marriage license had not been filed, the defendant returned to the [county] clerk’s office and signed a replacement license, which was also signed by [his] sister and two witnesses. The evidence supports [the defendant’s] conviction for bigamy.

What this means for churches

This case illustrates two important points.

First, bigamy prosecutions are not a thing of the past. They are a very real threat that can result in incarceration. Ministers can play an invaluable role in minimizing this risk by requiring engaged couples to present a valid and unexpired marriage license before the date of a wedding.

Second, under the laws of most states, procedural defects associated with a marriage ceremony do not invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. As a result, it is imperative for ministers to be familiar with the legal requirements that pertain to marriages in their state. This is especially true for new ministers, and for ministers who have recently moved to another state.

State v. Johnson, 967 N.W.2d 242 (Neb. 2021)

Legal Developments

Court Rejects Man’s Attempt to Claim an Invalid Marriage

What ministers who officiate weddings should know about their responsibilities ahead of a ceremony.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A man who in all respects lived with his wife for 27 years as husband and wife was barred from claiming that the marriage was invalid and therefore his scheme to avoid alimony payments to her did not work.

Background

On October 25, 1991, a couple held a formal wedding ceremony in Jackson County, Missouri, attended by approximately 100 guests, including both the husband’s and wife’s families. At that time, the wife was 19 years old and the husband was 29 years old.

The ceremony was held in a church and officiated by a minister who was authorized by law to solemnize marriages. During the ceremony, the couple exchanged vows and wedding rings.

The church provided the couple with a “Marriage Covenant,” which was signed by both spouses, witnesses, and the minister who officiated the ceremony. After the ceremony, the wife changed her surname on her driver’s license and Social Security card using the marriage covenant as proof of the marriage as she believed in good faith that she was lawfully married.

Although the husband told his wife that he would file the marriage covenant, he never did or sought any marriage licensing documentation from the state of Missouri.

In February of 2017, the wife discovered that her husband was having an affair with another woman, and on December 2, 2018, the couple separated.

The couple had remained together for 27 years. They lived together, acquired property together, held themselves out as married, and had three children.

The warranty deed to their family home granted them ownership as husband and wife. The deed of trust they executed to obtain a mortgage on their family home was granted to them as husband and wife, and so too were subsequent deeds of trust they obtained to refinance their mortgage.

The wife was the primary beneficiary of her husband’s life insurance policy and “children of marriage” were named as the contingent beneficiaries of the same life insurance policy.

The couple celebrated wedding anniversaries of their October 25, 1991, wedding ceremony. And they represented on tax filings to the state of Missouri and the United States Internal Revenue Service that they were husband and wife.

Husband: There was no “valid” marriage

In 2019, the wife filed a petition for dissolution of the marriage. For the first time since their church wedding in 1991, the husband asserted the position in this litigation that there was no “valid” marriage. Instead, the husband challenged the trial court’s jurisdiction to dissolve the marriage on the grounds that no marriage license was ever obtained or filed by the parties and, accordingly, the marriage was invalid from its inception.

The trial court ruled that, notwithstanding any purported invalidity of the marriage, the husband was prevented from denying its validity.

The trial court reasoned that because he engaged in a marriage ceremony, cohabited, bore children with his wife, enjoyed numerous benefits of marriage for 27 years, and at all relevant times held himself out as married to banks, governmental agencies, and all others, he could not now disavow the marriage.

On appeal, the husband sought a reversal of the trial court’s judgment and continued his attack on the trial court’s authority to issue any judgment relating to an “invalid” marriage.

Appeals court: the presumption that a ceremonial marriage exists

The appeals court began its opinion by addressing the central issue of whether the couple’s marriage was legally valid:

Since 1921, Missouri has prohibited residents of this state from entering into common-law marriages. … “To eliminate common-law marriages, the legislature implemented solemnization and license requirements,” otherwise known as a ceremonial marriage. … The law governing ceremonial marriages in this state has, for the last century, required that a marriage license be obtained from an authorized officer and that the marriage be solemnized by a person authorized by law to solemnize marriages. …

Despite the abolition of common-law marriage in Missouri, “a presumption of a ceremonial marriage arises upon a showing of open cohabitation, declaration and conduct by the parties and general reputation, despite [an] inability to show a marriage license or any record of the issuance of one.” … (“[T]he ordinary presumption of marriage that obtains where parties have cohabited together and have held themselves out as man and wife” is not destroyed by the abolition of common-law marriages.) This presumption is one of the strongest in the law. … This presumption applies in any case where the validity of the marriage is challenged.

The court concluded that the presumption that a ceremonial marriage exists is applicable in this case:

[The husband and wife] held a wedding ceremony attended by upwards of 100 attendees including their family and friends; they cohabited for twenty-seven years; they obtained title to and a mortgage for their family home as husband and wife; subsequent mortgages on the home were also acquired as husband and wife; over the years they filed tax returns under the category of “married filing jointly” and “married filing separately”; the couple’s children, family, and friends believed them to be married; and they held wedding anniversaries commemorating their 1991 wedding ceremony.

But, it is undisputed, in fact agreed, that the parties did not obtain a marriage license prior to the October 25, 1991 wedding ceremony or at any time during their relationship. The unambiguous language of [the marriage statute] that declares that no marriage shall be recognized as valid unless a license has been obtained makes the license requirement mandatory and not merely directory. … By failing to obtain a marriage license, the parties did not comply with the law of this state … to establish a valid marriage.

This is the crux of the husband’s claim. He asserts that because Missouri does not recognize common-law marriage and a marriage license was never obtained, there was never a valid marriage. … And, therefore, the trial court erred in “dissolving” a marriage that never validly existed and distributing property that was never marital.

The court concluded that what the husband failed to appreciate was that

his claims do not prevail simply by demonstrating the absence or non-issuance of a marriage license. For, [he] is not in a position to challenge the trial court’s authority based on the assertion that his presumptive ceremonial marriage … was invalid [from the beginning] because [the couple] failed to obtain a marriage license. Indeed, [he] is equitably estopped from lodging such a challenge.

The court continued:

“[E]ven if it were conceded that no [marriage] license was obtained before the ceremony, [the husband’s] efforts to argue there was no marriage must fail. The record shows that [he] does not stand before the court as a party entitled to deny the marriage. [He] engaged in a marriage ceremony, cohabitation, and other conduct consistent with the existence of a marriage relationship. He obtained the benefits of marriage … and lived the life of a married man. He participated in bringing children into the marriage and did not disavow the existence of a marriage. … [He] never, until after [his wife] decided to seek dissolution, informed [her] that he would take the position that there was no marriage. He now seeks to avoid the marriage only to deprive [his wife] of the relief which the law would provide her. He has no equitable basis to seek to avoid the marriage; therefore, he is precluded by equitable estoppel from raising an objection to the court’s … jurisdiction. …”

Despite [the husband’s] current claim that he was never married … he did not challenge the validity of the marriage at any point preceding the commencement of this litigation. In fact, [he] held himself out as married and fully availed himself of the many benefits of marriage—for twenty-seven years. He enjoyed the intimate bond between spouses, brought children into the marriage, and had a devoted spouse who left her career behind to raise their children. He also enjoyed the protections of holding property as tenants by the entirety. And, as the primary wage earner of the household, he took full advantage of the tax deductions afforded a married couple by filing as “married” instead of “single.”

At all relevant times, [the wife] believed herself to be lawfully married and acted in good faith on that belief. She changed her surname using the marriage covenant to effectuate that change. She testified at trial that she relied on the validity of the marriage when entering into loan contracts that could be accelerated or defaulted if a misrepresentation was later discovered. [She] relied on the validity of the marriage when, for twenty-seven years, she did not enter the workforce full-time or pursue educational opportunities. [She] testified that she would not have cohabited nor bore children … if they were not married, and these assertions are supported by the fact that the couple did not cohabit or have children until after their wedding ceremony. And, but for her good-faith belief that she was married, [she] would not have represented on tax filings to the State of Missouri and the United States government that she was married.

Despite the many benefits that he garnered, [the husband] declares that a marriage never existed between [the parties]; that is, now that it is advantageous for him to so claim. If [the husband] is allowed to disavow the twenty-seven-year presumed marriage he shared with [his wife], it would not only deprive her of certain financial awards that she received in the judgment of dissolution and for which she is entitled but would effectively denominate their children as illegitimate, expose them to criminal and civil liability for income tax fraud, and place them in default with their creditors.

What this means for churches

This case illustrates two important points regarding marriage licenses.

First, most states forbid a minister from performing a marriage unless the couple has obtained a marriage license. In many states, such licenses are obtained from the county recorder’s office.

Licenses are obtained by completing and submitting an application to the appropriate government office, along with the applicable fee. License applications generally ask for biographical and residential information.

Licenses usually are valid for only a specified period of time, and only in the county in which they were issued. Many states impose a “waiting period” of a few days after an application for a license has been submitted until the license may be issued.

The Legal Requirements for Performing Marriages

The two important points outlined here are adapted from the “Performance of Marriage Ceremonies” section of the Legal Library. Turn to this section for additional insights, guidelines, and cautions.

Second, in most states, procedural defects associated with a marriage ceremony do not necessarily invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. Despite the fact that a marriage license had not been completed or filed with the state, the court in this case concluded that the marriage was valid because the couple had lived together as husband and wife for 27 years.

Ministers should be familiar with the license requirements under local law and share this information with engaged couples. Many counties publish pamphlets for engaged couples that summarize the license requirements. It would be a good practice for ministers to have a supply of these publications on hand.

As noted above, ministers may be criminally liable for marrying couples who cannot produce a valid and unexpired marriage license. In general, however, the courts are inclined to validate a marriage despite procedural defects and hold the officiating minister liable for the error.

Well in advance of a marriage, the minister should request a copy of the marriage license and ensure that it does not expire prior to the wedding date.

Aldrich v. Aldrich, 637 S.W.3d 485 (Mo. App. 2021)

Legal Developments

Court Rules Venue Owners Violated Discrimination Laws by Refusing to Host Same-Sex Wedding

Wedding facilities fall comfortably within the broad definition of “place of public accommodation.”

Richard R. Hammar, Attorney, CPA
Bio

Key point 13-02.1. In the Smith case (1990) the Supreme Court ruled that a neutral law of general applicability is presumably valid and need not be supported by a compelling government interest to be consistent with the First Amendment, even if it interferes with the exercise of religion.

Key point 13-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court's decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

A New York court ruled that a married couple that owned a farm that was open to the public for weddings and other special events violated a state law banning discrimination based on sexual orientation by places of public accommodation when they refused, on religious grounds, to let a same-sex couple marry at the farm.

A married couple owns a 100-acre farm. The farm was registered under state law as a limited liability corporation, but it is not a nonprofit or religious entity. In addition to harvesting and selling various crops to the public, the owners rent portions of the farm to the public as a venue for, among other things, wedding ceremonies and receptions. It hosts both religious and secular wedding ceremonies on the farm. When providing a venue site, the couple offers several wedding-related event services, including transportation of guests within the premises, a light beverage station, decoration and setup services, flower arrangements, and event coordination. Such services are provided primarily by the couple themselves.

In October 2011, two women (the "plaintiffs") became engaged to be married. A year later, one of the plaintiffs spoke with the owners about using the farm as a venue for her wedding ceremony and reception. During the conversation, the plaintiff used the female pronoun to refer to her fiancée, thus indicating that she was engaged to a woman. The owners promptly interjected that there was "a problem" and that the farm did "not hold same-sex marriages." In response to the plaintiff's query as to the reason for not allowing same-sex marriages, the owners explained that "it's a decision that [we] have made that that's not what we wanted to have on the farm."

The plaintiffs thereafter filed complaints with the State Division of Human Rights (SDHR) alleging that the owners engaged in unlawful discriminatory practices based on sexual orientation. After an investigation, SDHR determined that it had jurisdiction over the matters and that probable cause existed to support the complaints. Following a public hearing, an Administrative Law Judge (hereinafter ALJ) found that the farm is a place of public accommodation within the meaning of the Human Rights Law and that the owners illegally discriminated against the plaintiffs on the basis of their sexual orientation. The ALJ recommended that the plaintiffs each be awarded $1,500 in compensatory damages for the emotional injuries they suffered as a result of the discrimination, that a civil fine and penalty in the amount of $10,000 be imposed upon the owners, and that the owners cease and desist from engaging in discriminatory practices and establish anti-discrimination training and procedures at the farm.

Place of public accommodation

The court said New York's law was enacted "to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life" by "eliminating and preventing discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions."

To accomplish these goals, the Human Rights Law declares it an "unlawful discriminatory practice" for any "owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the … sexual orientation … of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof."

The owners challenged SDHR's determination that they violated the Human Rights Law on two distinct grounds.

First, they asserted they are not subject to the Human Rights Law because the farm's wedding facilities do not constitute a "place of public accommodation" within the meaning of the statute.

Second, the owners claimed that, even if they are a place of public accommodation, they did not engage in unlawful discrimination on the basis of sexual orientation.

These two grounds are addressed separately. The court rejected both defenses. In rejecting the owners' claim that the farm was not a place of public accommodation, the court observed:

The New York Human Rights Law defines "place of public accommodation, resort or amusement" inclusively … and sets forth an extensive list of examples of places within the statute … . Over the years, the statutory definition has been expanded repeatedly, providing a clear indication that the legislature used the phrase place of public accommodation in the broad sense of providing conveniences and services to the public and that it intended that the definition of place of accommodation should be interpreted liberally … .

Here [the farm's] wedding facilities fall comfortably within the broad definition of "place of public accommodation." It is undisputed that the owners open the farm to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that [it] does not provide is an officiant for the wedding ceremony. The couples who contract to wed at the facilities are members of the general public who, like the [plaintiffs] may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as the owners contend, remove the facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large … . Thus, SDHR properly determined that the owners were subject to the Human Rights Law.

The owners' second argument was that they did not engage in prohibited discrimination on the basis of sexual orientation. Rather, they insisted that their refusal to host a same-sex marriage was based on their religious beliefs. The court responded that "attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected," and that "the act of entering into a same-sex marriage is conduct that is inextricably tied to sexual orientation and, for purposes of the Human Rights Law, we hold that there is no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone's conduct of publicly committing to a person of the same sex."

Religious freedom

The owners claimed that they had "a sincere religious belief that marriage is between one man and one woman under God," and so the SDHR's determination "unconstitutionally compelled them to host and participate in what they consider to be a sacred event that violates their religious beliefs and to implement anti-discrimination training and procedures that will necessarily endeavor to alter their religiously-motivated views and practices." The court disagreed, noting that the United States Supreme Court has ruled that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Employment Division v. Smith, 494 U.S. 872 (1990). Therefore, "a generally applicable and otherwise valid enactment, which is not intended to regulate religious conduct or beliefs but which may incidentally burden the free exercise of religion, is not deemed to violate the First Amendment." Matter of New York State Employment Relations Board v. Christ the King Regional High School, 660 N.Y.S.2d 359 (N.Y. App. 1997).

The court noted that the Human Rights Law does not "target religious beliefs," nor is its objective "to infringe upon or restrict practices because of their religious motivation." Rather, the Human Rights Law "generally forbids all discrimination against a protected class in places of public accommodation regardless of the motivation."

The court concluded:

While we recognize that the burden placed on the owners' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, they are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the owners' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination … . Discriminatory denial of equal access to goods, services and other advantages made available to the public not only "deprives persons of their individual dignity," but also "denies society the benefits of wide participation in political, economic, and cultural life." Balancing these competing interests, we conclude that the owners failed to show that SDHR's determination constituted an unreasonable interference with their religious freedom.

What This Means For Churches:

This case illustrates the impact of the nondiscrimination provisions in state and local public accommodation laws. Consider the following:

1. State and local laws.

  • 21 states have enacted legislation that explicitly bans discrimination based on sexual orientation by places of public accommodation.
  • 44 states have enacted legislation that explicitly bans discrimination based on sex by places of public accommodation. In some of these states, "sex discrimination" is interpreted broadly to include discrimination based on sexual orientation and gender identity.
  • Some 200 cities have enacted legislation that explicitly bans discrimination based on sexual orientation and gender identity by places of public accommodation. Many of these cities are in states that have not banned these forms of discrimination.

2. Most states have enacted laws exempting churches from the nondiscrimination provisions of public accommodation laws, though these exemptions vary from state to state. In addition, church exemptions usually include conditions. For example, the exemption may not apply to a church that rents its facility to the general public, or that invites the public onto its premises for nonreligious functions.

Note that the New York public accommodations law implicated in this case contains this exemption for religious organizations: "For the purposes of this section

… a religious corporation incorporated under the education law or the religious corporations law shall be deemed to be in its nature distinctly private." This exemption did not benefit the farm or its owners since, as the court noted, the farm was not a nonprofit or religious corporation.

3. In the Hobby Lobby case in 2014, the United States Supreme Court ruled that the Religious Freedom Restoration Act (RFRA) did not permit the US Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violated the sincerely held religious beliefs of the companies' owners. Burwell v. Hobby Lobby Stores, Inc., 1134 S.Ct. 2751 (2014). The Court concluded that regulations imposing this obligation violated RFRA, which prohibits the federal government from taking any action that (1) substantially burdens the exercise of religion, (2) unless that action constitutes the least restrictive means of serving a compelling government interest. In holding that the HHS mandate was unlawful, the Court rejected HHS's argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as closely held corporations.

RFRA was violated in the Hobby Lobby case because the challenged HHS regulations substantially burdened the exercise of religion. The owners of the businesses had religious objections to abortion, and according to their religious beliefs, four of the contraceptive methods mandated by HHS regulations under the Affordable Care Act are abortifacients. If the owners complied with the HHS mandate, they believed they would be facilitating abortions, and if they did not comply, they would pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. The Court concluded: "If these consequences do not amount to a substantial burden, it is hard to see what would."

Under RFRA, a government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and must also constitute the least restrictive means of serving that interest. The Court concluded that the mandate plainly failed that test since "there are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives."

Note that RFRA only applies to actions by the federal government. In 1997, the United States Supreme Court ruled that RFRA does not apply to state or local laws that burden religious freedom. To illustrate, in 2015, a federal appeals court ruled that a Washington law requiring pharmacists to dispense prescriptions was constitutional, even if doing so, as in the case of abortifacients, violated their religious beliefs. Stormans v. Wiesman, 794 F.3d 1064 (9th Cir. 2015). The court relied on the Supreme Court's decision in the Smith case in 1990 (see above) in which the Court ruled that neutral laws of general applicability are constitutional even if they impose a burden on religious belief. The court concluded that Washington's pharmacists law was a neutral law of general applicability since it did not single out religious organization for less favorable treatment.

The Hobby Lobby case, and RFRA, may provide a defense to the application of federal laws to small business owners if the law substantially burdens their exercise of religion and the government has other options of furthering its interests that are less restrictive of religious freedom. Twenty-one states have enacted their own version of RFRA, and these laws may provide some protection of religious liberty. However, rulings by the Supreme Court raise some doubt regarding the effectiveness of these laws. In the Matter of Gifford, 23 N.Y.S.3d 422 (N.Y. App. 2016).

Legal Developments

Pastors Can Be Subject to Criminal Penalties for Not Complying with Legal Requirements for Valid Marriage under State Law

The legal effect of a marriage without a valid license is not the invalidation of the marriage, but rather, criminal sanctions against a minister who knowingly performs a marriage without a license.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A North Carolina court ruled that the failure of a couple to obtain a valid marriage license prior to their wedding will not invalidate the wedding, but may expose the officiating minister to criminal prosecution pursuant to state law.

A couple was married in 1993, and divorced in 2007. The couple later reconciled, and the wife moved back into the husband’s home in 2012. They attended church every Sunday and established a relationship with their pastor. The pastor at first assumed that the couple was married, but they informed her they had divorced and reconciled, and that they intended to remarry, but “never made a solid date.” According to the pastor, the couple “just said they wanted to do it, and I said, you know, give me a call and we’ll get together and discuss it. And, you know, he got ill and we never had that meeting that they wanted to have.”

The husband had chronic medical issues, and his wife cared for him. The husband became ill in November 2013, and required hospitalization. He was twice transferred from the hospital to a rehabilitation facility before returning to the hospital in December 2013. The couple discussed marriage while the husband was hospitalized, and decided to marry while he was still in the hospital. The wife asked a friend to be her maid of honor and witness, and she asked her son to be best man and a second witness.

The couple’s pastor visited the husband in the hospital every other day, and she agreed to officiate the wedding ceremony at the couple’s request. The pastor testified she had been ordained for 22 years, had performed many wedding ceremonies in her capacity as a pastor, and was fully authorized by her church to do so. She testified she performed the regular ceremony that she performs for weddings, though certain parts were shortened. She stated that both the husband and wife affirmed: “In the name of God, I take you to be my wife (or husband), to have and to hold from this day forward, for better, for worse, richer or poorer, in sickness, in health, to love and to cherish until death.” The pastor then pronounced them husband and wife, and performed “the blessing of the marriage” which, she claimed was very important in her church.

However, because the couple had not procured a marriage license, the pastor testified:

It was my intent to provide what I thought was for the husband in the last days of his life some closure to something that he felt and regretted had not been done. So, it was a pastoral act on my part. I knew there wasn’t a wedding license. I wasn’t in there as a representative of the state, which clergy are, you know, when they’re doing marriages and have the license present. So, I mean, we all knew that there was not a marriage license. So, this was a pastoral and a sacramental—I would say for me it was mainly a sacramental act, a sacrament that they wanted to know that they had … . I told them that it would not be a legal marriage if we didn’t have a license, and they did not have a license. But I believe the sacrament took place, and that was what was important to them.

The wife claimed that she did not attempt to obtain a marriage license because her husband was too ill to travel to the register of deeds, and that “we didn’t really think about a marriage license, we just were happy to finally get married.”

The husband died on the day following the ceremony. A dispute arose over the disposition of his estate. His wife claimed that, as his spouse, she was entitled to half his estate under state probate law. But the husband’s children argued that she was not his wife since the marriage ceremony was invalid due to the couple’s failure to obtain a marriage license. A trial court concluded that the ceremony did “not make the wife an heir or entitle her to the share of the surviving spouse or any other interest in or from the decedent’s estate.” The wife appealed.

A state appeals court noted that North Carolina law specifies that “a valid and sufficient marriage is created by the consent of [the parties] who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other … in the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and with the consequent declaration by the minister or magistrate that the persons are husband and wife.”

The court noted that it was undisputed that the couple “were able to lawfully marry at the time of the ceremony; that they seriously and freely expressed their desire to become husband and wife in the presence of each other; that the pastor was an ordained minister with authority to conduct marriage ceremonies; and that the pastor declared during the ceremony that the couple were husband and wife.”

However, the court pointed out that the marriage was conducted without a license, and it quoted from the state marriage law: “No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.” A violation of this provision is punishable by a fine:

Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.

The court concluded that “the fact that the ceremony in the present case was conducted without a license could not serve to invalidate an otherwise properly performed ceremony and resulting marriage. There is no dispute that the ceremony was conducted in the presence of a minister authorized to perform marriages, and that that minister … declared that couple were husband and wife. There is no dispute that the couple could lawfully marry at the time the ceremony was conducted, and that they stated at the ceremony that they would take each other as “husband and wife freely, seriously and plainly expressed by each in the presence of the other … .”

The legal effect of a marriage without a valid license is not the invalidation of the marriage, but rather, criminal sanctions against a minister who knowingly performs a marriage without a license.

What This Means For Churches:

Pastors occasionally are called upon by parishioners to perform a “religious” marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. Consider the following examples:

  • One or both spouses is an undocumented alien.
  • Compliance with one or more of the civil law requirements is not possible. For example, a couple failed to obtain a license within the time prescribed by law, or one of the spouses is underage.
  • A pastor is asked to perform a marriage in another state in which nonresident pastors are not authorized to perform marriages.
  • A divorced spouse will lose alimony from her former husband if she remarries. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called “palimony”) from one former partner to the other. Conditions apply.
  • A divorced spouse will lose insurance or other benefits in the event of remarriage.
  • A couple believes that their Social Security retirement benefits will be higher if they are not legally married.
  • A couple regards the civil law requirements for marriage as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony.

Whatever the reason, pastors should understand that officiating at a religious marriage that fails to comply with the civil law requirements for a marriage may not be treated as a valid marriage under state or federal law, and this can have several unintended consequences, including the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • A religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on “loss of consortium” for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple cannot claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to employees and their “domestic partners,” the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a “common law marriage” recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner’s estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner’s estate. In re Estate of Peacock, 788 S.E.2d 191 (N.C. App. 2016).

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Legal Developments

Indiana’s Marriage Solemnization Statute Shows Clergy Preference

Statue held as unconstitutional due to preference of clergy over secular leaders.

Church Law and Tax Report

Indiana’s Marriage Solemnization Statute Shows Clergy Preference

Statue held as unconstitutional due to preference of clergy over secular leaders.

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law. In addition, clergy must be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A federal appeals court ruled that Indiana’s marriage solemnization statute was an unconstitutional preference for clergy over secular leaders. Indiana Code § 31-11-6-1 specifies who may solemnize a marriage. The list includes religious officials designated by religious groups but omits equivalent officials of secular groups, such as humanist societies:

Marriages may be solemnized by any of the following:

  1. A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
  2. A judge.
  3. A mayor, within the mayor’s county.
  4. A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
  5. A clerk of the circuit court.
  6. The Friends Church, in accordance with the rules of the Friends Church.
  7. The German Baptists, in accordance with the rules of their society.
  8. The Bahai faith, in accordance with the rules of the Bahai faith.
  9. The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
  10. An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

Anyone not on this list who purports to solemnize a marriage commits a crime. The state accommodates some religions, such as the Quakers (the Society of Friends, which the statute calls the “Friends Church”), that do not have clergy, but does not accommodate others, such as Buddhists, that lack clergy-led structures.

The Center for Inquiry in Indiana, a nonprofit that describes itself as a humanist group promoting ethical living without belief in a deity, and one of its members (the “plaintiffs”) filed suit in federal court. The plaintiffs claimed that the Indiana solemnization of marriage statute violated the First Amendment of the United States Constitution by preferring clergy over secular leaders.

The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center has certified 23 persons in the United States as “secular celebrants” of non-religious marriages. One of these individuals resides in Indiana, and has been asked by members to solemnize their marriages, which she wants to do but can’t because Indiana does not recognize humanist leaders as “clergy”—nor is the Center willing to classify itself as a “religious organization” in order to allow its secular celebrants to be treated as “clergy”.

The federal court ruled that Indiana’s statute did not violate the First Amendment. The plaintiffs appealed.

A federal appeals court agreed with the plaintiffs that the Indiana marriage solemnization law was unconstitutional because it favored some religions to the exclusion of other religious and secular groups. The court concluded that the marriage solemnization law would be rehabilitated, and would no longer offend the Constitution, if the state legislature simply added notaries public to the list of persons who can solemnize marriages: “The current statute discriminates arbitrarily among religious and ethical beliefs. Plaintiffs say that they would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public. Since Indiana has never given a reason for excluding notaries, while including every mayor and clerk of court, that hardly seems an excessive request.”

What This Means For Churches:

The court noted that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage. This case demonstrates that while states may allow clergy to solemnize marriages, they may not withhold this privilege from some religious or nontheistic groups. However, the constitutional infirmity can be corrected by adding notaries public to the list of persons authorized to solemnize marriage. Center for Inquiry, Inc. v. Marion Circuit Court Clerk, 2014 WL 3397217 (7th Cir. 2014).

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Legal Developments

Court Rules Marriages Performed in Foreign Country Valid in Maryland

Ruling on Congo couple’s marriage suggests ceremonies with one spouse represented by proxy or long-distance communication may be valid.

Church Law and Tax Report

Court Rules Marriages Performed in Foreign Country Valid in Maryland

Ruling on Congo couple’s marriage suggests ceremonies with one spouse represented by proxy or long-distance communication may be valid.

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition, to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A Maryland court addressed the validity of marriages performed in foreign countries in a ruling that will be relevant to many pastors. A man and woman, both natives of the Democratic Republic of Congo (formerly Zaire), met in 1993 and decided to marry. The marriage occurred in December of 1993. The husband was not able to physically attend his wedding due to his work schedule, but designated his cousin to represent him. In addition, the husband “participated” in the wedding over the phone. During the ceremony the husband was asked three questions: did he know the bride, did he like her, and did he want a dowry to be exchanged. He answered “yes” to each question. The marriage was consummated by the transfer of $200 cash, clothes, and a live goat.

After the wedding, the couple lived together and represented themselves as husband and wife. They moved to Virginia, where they purchased a home. In 1994, the couple participated in a “renewal of vows” ceremony at a church in Virginia. The couple obtained a “Proof of Marriage” certificate from the Congolese Embassy and brought it to the Virginia ceremony. The church provided them with a second certificate stating that they were “united in matrimony … in conformity with the laws of the State of Virginia and the Republic of Zaire.” The certificate also attested that “there were witnesses present at the ceremony, including one member of [the husband’s] family.”

The couple eventually moved to Maryland. The couple had three children, but their marriage deteriorated to the point that the wife sued for divorce and requested alimony and child support. The husband responded by asserting that the couple had never been legally married, and therefore there was no basis for alimony or child support. A trial court ruled that the marriage was valid, granted the divorce, and ordered the husband to pay alimony and child support. The husband appealed, claiming that a proxy marriage in the Congo was not entitled to recognition in Maryland.

A Maryland appellate court affirmed the trial court’s ruling. It noted that under the principle of comity “Maryland courts will honor foreign marriages that were valid where performed, even if the marriage would not have been valid if performed in Maryland.” The court cited two exceptions to this rule: “First, the marriage must not be expressly prohibited by the [state legislature]. Second, the marriage must not be repugnant to Maryland public policy.” The court concluded that the marriage in the Congo was valid where performed and therefore would be recognized in Maryland, and that neither exception applied:

[Maryland law] describes who can perform a marriage ceremony and when the ceremony must be performed. Neither this law, nor any other statute, precludes Maryland from recognizing a ceremony where one party participates by proxy—or in the manner that occurred here—and the ceremony is valid in another jurisdiction. To preclude validity, the statute must unequivocally void such marriages. The General Assembly has not prohibited recognition of a foreign marriage such as the one that occurred here. We also find that neither proxy nor phone marriages are repugnant to Maryland public policy. Maryland’s attitude is that marriage should not be set aside lightly.

The court noted that the Uniform Marriage and Divorce Act, which has been adopted by several states, declares “if a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, he may solemnize the marriage by proxy. If he is not satisfied, the parties may petition the … court for an order permitting the marriage to be solemnized by proxy.” An official comment to this portion of the Act further explains that “there are many reasons why, in individual cases, couples may prefer such a ceremony. So long as the marriage license procedure has been followed and the official performing the ceremony has no reason to doubt the intentions of the absent prospective spouse, there is no reason why a proxy marriage should be prohibited.”

The court further explained:

Distant marriages are becoming more and more common. Notably, two law professors at Michigan State University have been conducting a study, the E-Marriage Project, since 2008 … . The study looks at the marriage ceremonies of the 50 states. The two professors believe that states should go so far as to permit couples to marry using videoconferencing technologies such as Skype. They call this proposal “modernizing marriage,” and they compare a Skype marriage with other major business contracts that take place over videoconference every day.

The mounting recognition and research on distant marriages suggest that sometimes it may be a couple’s only option. The men and women who serve in our armed forces sacrifice a great deal of control over their daily lives for this country and they often are married by proxy. In addition, modern employment commitments often uproot one party from home for long periods of time. This may make personal participation in a marriage ceremony impracticable. Not permitting marriages by proxy or by phone could deprive these couples of the emotional and legal benefits that accompany marriage. [The marriage in this case] seems to illustrate such a situation. The husband was working in another country for his employer, yet the couple was still able to have a wedding ceremony in their native country with the husband participating by phone.

For these reasons, we are not persuaded that a marriage by proxy or by phone rises to the level of being repugnant to public policy. The types of marriages are not specifically prohibited by law, do not harm the liberties of either spouse, and it is not inconceivable in the future that such a marriage may be valid when performed in Maryland. The parties’ marriage in the Congo, where someone stood in for [the husband who] participated by phone, was valid in the Democratic Republic of the Congo and Maryland courts would find it valid in this State under the doctrine of comity. Recognizing that the parties’ marriage was valid, the circuit court did not err in granting a divorce, awarding alimony, dividing property, calculating child support, or awarding attorney’s fees.

What This Means For Churches:

This case is of interest because it suggests that clergy may perform marriages by proxy or electronic communications technology in situations when one or both spouse’s physical presence is not possible. Such marriages may occur in a number of possible scenarios, including:

emergencies
military deployment
incarceration
illness
employment
business necessity

This case demonstrates that pastors who are asked to perform a marriage by proxy, or electronic technology, should not assume that the ceremony will be invalid. In many states, the marriage will be lawful. Before responding to such a request, check with a local attorney to see if your state law recognizes these ceremonies. Tshiani v. Tshiani, 56 A.3d 311 (Md. App. 2012).

Legal Developments

Marriage License Never Returned to County Clerk; Marriage Still Valid

Court ruled a 26-year-marriage valid because the existence of marriage was provable without official record.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

The Nebraska Supreme Court ruled that a marriage of 26 years was valid despite the fact that the judge who performed the marriage ceremony failed to return a certificate of marriage to the county clerk as required by law.

A couple was married by a judge at a county courthouse. Prior to their marriage the couple obtained a "License and Certificate of Marriage" form. This form contained a section to be completed by the person solemnizing the marriage certifying that he or she joined the parties in marriage in the presence of two witnesses. The form was then to be presented to the clerk of the county court for filing.

The husband later asked a local court to declare that "no marriage ever existed" because the return was not completed and filed. The wife claimed that the couple was married by the county judge in a ceremony attended by approximately 250 people. At the conclusion of the ceremony, the judge asked the witnesses to accompany him to a small table at the front of the room, where he asked the witnesses to sign the original marriage certificate. The wife's maid of honor confirmed the signing of the certificate at the table. The wife also asserted that when she and her husband returned from their honeymoon, she asked him what he had done with the original marriage certificate, and he replied that he had placed it in a safe in his office.

The husband claimed that he had no idea what happened to the marriage license after it was issued. He did not recall whether a marriage certificate was ever signed, and he did not recall ever seeing an original marriage certificate.

The trial court noted that the question before it was "whether a fully executed and duly filed return of a marriage license is a legal requirement for a valid marriage." The court concluded that the requirements for a valid legal marriage had been met. The court further determined that the state law relating to a return of a marriage certificate was "procedural" and "did not constitute substantive requirements for a valid legal marriage." The court also determined that "the evidence as presented is uncontroverted that the parties have held themselves out as husband and wife since the date of their marriage and have continued to do so for the past 26 years."

The state supreme court agreed that the marriage was legally valid. It acknowledged that state law stipulated that persons performing a marriage ceremony had to return a completed certificate of marriage to the county clerk within one month of the marriage. But it concluded: "We find no indication in the statutes that the legislature intended to penalize the parties to a duly licensed and solemnized marriage for an officiant's subsequent failure to complete and file the return. The purpose of the return is to provide an official record that the solemnization ceremony was performed … . In the absence of the certificate, parties would be required to prove the existence of the marriage by some other means, as they did in this case."

What This Means For Churches:

Most states require persons who solemnize a marriage, including ministers, to return a marriage certificate to a local official within a specified period of time. But, as this case illustrates, the failure to comply with this requirement will not necessarily affect the validity of the marriage. Vlach v. Vlach, 2013 WL 3113261 (Neb. 2013).

Legal Developments

Performing “Religious” Marriage Ceremonies

Risks of officiating at “religious” marriages that don’t comply with state law.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and, in addition, to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A Kentucky court ruled that a couple who participated in a "religious marriage" without obtaining a marriage license from the county clerk were not legally married. After dating for nearly a year, a Jewish couple asked their rabbi if he could perform a Jewish marriage ceremony consistent with the laws, customs, and traditions of the Jewish faith, but without a "secular, legal marriage contract." In particular, the parties did not wish for any civil marriage license or marriage certificate to be executed or filed. Neither person was an American citizen, and the rabbi understood that their desire to avoid a civil marriage was based upon immigration concerns and a need to remain legally free to marry American citizens for the purpose of applying for citizenship.

The rabbi confirmed that Jewish religious law does not require that a civil marriage license be obtained and executed, or that certification of the marriage ceremony be filed with a governmental clerk, for the establishment of a valid marriage. Even so, his attempts to convince the couple to be married in accordance with both the mandates of Jewish religious law and civil law were unsuccessful.

The rabbi presided over a highly ritualistic orthodox Jewish wedding ceremony for the couple, in the presence of more than 100 family, friends, and guests, and in accordance with all laws, customs, and traditions of their faith. During the ceremony, the couple signed a "Ketubah"—a formal Jewish marriage contract that provides for a money settlement payable to the wife in the event of divorce or at the husband's death. Thereafter, the assembly joined in other traditional Jewish acts related to marriage at a reception.

Though he is a person authorized to solemnize civil marriages under state law, the rabbi testified he did not solemnize a civil marriage for the couple, at their insistence.

Both "spouses" acknowledged that they did not apply for, or obtain, a civil marriage license or cause a marriage license or marriage certificate to be executed and filed with the county clerk. The rabbi confirmed that the couple directed him not to sign or file documentation with the county clerk's office certifying that a marriage of any kind had taken place and, in keeping with their instructions, he did not do so. Thereafter, a son was born to the parties, and they continued to live together.

Two years later, the "husband" filed a divorce petition with a civil court. The "wife" opposed the petition, and a trial court ruled that the couple had entered into a legally valid "de facto marriage." The court found "no statutes relating to marriage that would indicate that the legislature intended that the validity of a marriage is conditioned on applying for, obtaining, signing, or filing a certificate of marriage license" and held "a failure to obtain or return for filing with the county clerk a license or certificate of marriage does not void or invalidate an otherwise valid marriage." Further, even though the couple had failed to obtain a marriage license and had excluded solemnization of a civil marriage from their religious marriage ceremony, the trial court held they had nevertheless established a valid and legally recognized de facto marriage.

On appeal, the "husband" claimed that the trial court erred in holding that a legally valid de facto marriage had been established because the term "de facto marriage" is synonymous with a common-law marriage and Kentucky does not recognize common-law marriage. A state appeals court began its opinion by observing:

The issues confronting us in the present case arise in the context of parties who knowingly and intentionally evaded and disregarded statutory mandates for establishing a legally valid civil marriage, particularly including their duty to initially obtain a license to be civilly married within Kentucky. Instead, they opted to participate in a purely religious marriage ceremony celebrated by their rabbi before a gathering of family and friends. Contrary to the explicit advice of their rabbi, the parties chose not to secure the requisite civil marriage license in advance of their marriage ceremony. For whatever reason, they demanded their rabbi solemnize a marriage ceremony solely in accordance with the laws of their Jewish faith, with no reference to, witnessing, or certification of, a civil marriage. They further insisted their rabbi sign and file no certification or recording of any marriage ceremony with any civil authority. The trial court found the parties thereafter cohabited, gave birth to a son, and held themselves out to their community as husband and wife, prior to the souring of their relationship. Based on these facts, the trial court determined the parties had established a valid "de facto marriage" under Kentucky law.

The court noted that the legal requirements for a valid marriage in Kentucky are "concise and unambiguous." Section 402.080 of the Kentucky Revised Statutes specifies that "no marriage shall be solemnized without a license therefore." The court interpreted this language as imposing two requirements for a valid marriage: "First, the parties intending to be married must obtain a marriage license from a county clerk. Second, having obtained a marriage license, the parties intending to be married must solemnize their intent to be married before a person or society believed in good faith to possess authority to solemnize the marriage." The court concluded that strict compliance with these requirements "is necessary for the establishment of a legally valid and binding civil marriage."

In the present case, it was undisputed that the couple did not apply for, or obtain, a marriage license from the county clerk prior to their religious ceremony. The court noted that both "spouses" were aware of the license requirement, but intentionally disregarded it. Because they both "flagrantly disregarded the statutory requisites, neither can now reasonably argue that a legally valid civil marriage was ever intended, effectuated or supposed. Though a purely religious marriage ceremony was solemnized by [the rabbi] the uncontroverted proof establishes that no marriage license was ever obtained, and on that basis alone any presumption of a legally valid civil marriage is entirely negated."

The court concluded that "where parties fail to obtain the requisite marriage license prior to the solemnization of their intent to be joined in marriage, there is nothing of a civil nature for an otherwise authorized officiant to solemnize, no legally valid civil marriage can arise, and there is no civil marriage to be otherwise prohibited, voided, or declared invalid."

The court acknowledged that the rabbi was authorized by state law to solemnize civil marriages in Kentucky, but it concluded that "no minister, priest, rabbi, justice, judge, or religious society is authorized to solemnize a civil marriage absent the parties thereto first obtaining a marriage license."

What This Means For Churches:

Pastors occasionally are called upon by parishioners to perform a "religious" marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. Consider the following examples:

  • One or both spouses is an undocumented alien.
  • Compliance with one or more of the civil law requirements is not possible. For example, a couple failed to obtain a license within the time prescribed by law, or one of the spouses is underage.
  • A pastor is asked to perform a marriage in another state in which nonresident pastors are not authorized to perform marriages.
  • A divorced spouse will lose alimony from her former husband if she remarries.
  • A divorced spouse will lose insurance or other benefits in the event of remarriage.
  • A couple believes that their Social Security retirement benefits will be higher if they are not legally married.
  • A couple regards the civil law requirements for marriage as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony.

Whatever the reason, pastors should understand that officiating at a religious marriage that intentionally fails to comply with the civil law requirements for a marriage may not be treated as a valid marriage under state law, and this can have several unintended consequences, including the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • A religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on "loss of consortium" for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • If a couple is "considered married" for the whole year, they can file a joint return, or separate returns. A couple is "considered married" for the whole year if, on the last day of the tax year, they were living together in a common law marriage recognized in the state where they live, or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states, only some common law marriages are recognized.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple can claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to employees and their "domestic partners," the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a "common law marriage" recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner's estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner's estate.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called "palimony") from one former partner to the other. Conditions apply. Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011).

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Legal Developments

Spousal Support Payments

Court rules that pastor’s lowered salary should not cause his alimony payments to be reduced.

Richard R. Hammar, Attorney, CPA
Bio

A Virginia court ruled that a reduction in a pastor's salary was not sufficient grounds to reduce his alimony payments to a former spouse. A pastor and his wife were divorced in 2007. The final divorce decree awarded the wife $4,000 per month in spousal support and ordered the husband to pay $43,318 to his wife for attorney's fees. A few weeks after the entry of the parties' final decree, the church's board of directors voted to cut the husband's salary in half, from $80,000 to $40,000, and reduce his housing allowance from $25,000 to $20,000.

As a result, the husband unilaterally reduced his spousal support payment to $500 per month. He later filed a motion to reduce his spousal support obligation pursuant to a state law granting courts the authority to "increase, decrease, or terminate the amount or duration of any spousal support [award] as the circumstances may make proper." The husband pointed out that the church's board of directors decided to reduce his income by half based on changes in the economy and revenues earned. He claimed that he was not involved in the church's decision to reduce his income and that he was not present at the meeting. However, the trial court held that the "evidence which he [husband], and others on his behalf, presented strains credibility. We do not find it a coincidence that the vote of the church board of directors to do this occurred just a few weeks after the entry of the final decree of divorce in this case." The trial court found that the husband's reduction in income was "voluntary and orchestrated by him," and on this basis rejected his motion to reduce his monthly support obligation.

A state appeals court affirmed the trial court's ruling, noting that "a trial court has broad discretion in awarding spousal support, and its ruling will not be overturned unless there is an abuse of discretion." It concluded: "The trial court found the timing suspect, especially since the parties' final decree was entered on November 27, 2007; the church board of directors reduced husband's income on December 19, 2007; and husband reduced his monthly payments in January 2008. The trial court also questioned whether husband was involved in the reduction of his income. Based on the facts and circumstances, the trial court did not abuse its discretion …." 2009 WL 2496324 (Va. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2010.

Posted:

Legal Developments

Potential Problems with “Religious” Marriages

Ceremonies that don’t comply with legal requirements can have legal and tax consequences.

Richard R. Hammar, Attorney, CPA
Bio


Key point. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A federal court in Tennessee ruled that a couple who lived together were not legally married, and therefore one partner was not entitled to money damages based on loss of consortium following injuries sustained by the other partner in a traffic accident. A couple had a "religious" marriage in their church, presided over by a church elder. However, the couple never obtained a marriage license. Instead, they testified that they obtained a "certificate" from their church documenting that they had been married. One partner was injured in a traffic accident, and the survivor sued the company that owned the other vehicle for "loss of consortium." The court ruled that only a married spouse can maintain a loss of consortium claim based on the death or incapacity of the other spouse. It concluded:

As far as the law of Tennessee is concerned, without a valid license, the plaintiffs do not have a valid marriage. The Tennessee Code section on marriage "licenses and permits" states that, "before being joined in marriage, the parties shall present to the minister or officer a license under the hand of a county clerk in this state, directed to such minister or officer, authorizing the solemnization of a marriage between the parties. Such license shall be valid for thirty (30) days from its issuance by the clerk." Multiple other code provisions reinforce this notion that obtaining a valid license from the county clerk is a necessary step toward a valid marriage, as it protects the State against recognizing marriages that are contrary to the public interest …. Plainly, in order to have a valid, recognized marriage under Tennessee law, there must be a marriage license. Here, there is no license, so there is no marriage that the state of Tennessee will recognize.

The couple claimed that, even if they did not have a license, they believed themselves to be married, they had a marriage ceremony, they obtained a "certificate" of marriage from their church, and they have co-habited for more than five years. The court was not impressed:

The plaintiffs believe in the validity of their marriage, but they affirmatively do not recognize the authority of the state of Tennessee to sanction or regulate the validity of their marriage. Therefore, reasonably, the plaintiffs can be viewed as "believing in the validity of their marriage," but also "knowingly living together in an unmarried state …." The couple's decision not to obtain a license was a knowing choice; their deposition testimony showed that they had both been married and divorced before …. This plainly shows that they are familiar with the formalities of marriage, including licensing.

The court stressed that this is not a case in which the parties attempted to obtain a license and there was a technical glitch, such that, in fairness, the marriage should be recognized. Rather, here the plaintiffs made the conscious choice to forego a basic requirement of a valid marriage in Tennessee. That is, of course, their choice, but nothing in fairness and equity dictates that the court should now, when it suits the couple's financial objectives to have a government-sanctioned marriage, recognize their marriage as valid for purposes of this case.

Application. Pastors occasionally are called upon by parishioners to perform a "religious" marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. For example, some regard the civil law requirements as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony. In other cases, compliance with one or more of the requirements for a civil marriage may not be possible. Whatever the reason, pastors should understand that there are several potential legal and tax consequences associated with a "religious" marriage that is not in compliance with state law. These include the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • As this case illustrates, a religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on "loss of consortium" for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • If a couple is "considered married" for the whole year they can file a joint return, or separate returns. A couple is "considered married" for the whole year if on the last day of the tax year they were living together in a common law marriage recognized in the state where they live or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states only some common law marriages are recognized.
  • An unmarried person may be able to file as head of household if certain conditions are met.
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple can claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • If an employer provides health benefits to both employees and their "domestic partners," the amount paid by the employer is generally a tax-free fringe benefit to employees but is taxable to unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a "common law marriage" recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner's estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner's estate.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called "palimony") from one former partner to the other. Conditions apply. Becker v. Judd, 646 F.Supp.2d 923 (M.D. Tenn. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2010.

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Legal Developments

Legal Marriage Requirements

Couples united in “religious ceremonies” are not lawfully married.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Legal Marriage Requirements

Couples united in “religious ceremonies” are not lawfully married.

Richard R. Hammar, J.D., LL.M., CPA

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A Florida court ruled that a couple that was “married” in a religious ceremony that did not comply with the requirements for a valid marriage specified in state law was not lawfully married. A couple participated in a religious marriage ceremony in Oregon, and later relocated to Florida. They never applied for or obtained a government issued marriage license. They also never paid a government fee to get civilly married, never supplied their vital statistics to the government, never received a marriage certificate, and never recorded their marriage in Oregon’s public records, which are all required by Oregon law. A few years later, in a child support and custody proceeding, the husband claimed that no lawful marriage had ever occurred. The wife disagreed. She conceded that as a general rule a marriage license is required in Oregon for a lawful marriage to occur. However, she relied on the following “savings clause” in the Oregon marriage statute to validate the marriage:

All marriages, to which there are no legal impediments, solemnized before or in any religious organization or congregation according to the established ritual or form commonly practiced therein, are valid. In such case, the person presiding or officiating in the religious organization or congregation shall deliver to the county clerk who issued the marriage license the application, license and record of marriage in accordance with [the marriage statute].

The court concluded that this savings clause was inapplicable because it presupposes the existence of a marriage license issued by the appropriate county clerk. The court observed: “The lack of a marriage license in this case was a legal impediment because the parties neither sought nor obtained an Oregon marriage license in connection with the religious ceremony. By referencing delivery of the marriage license to the appropriate county clerk, this statute ascribes legal significance to the existence of such license, which itself evidences the intent of the parties to enter into a legal marriage.” The court added:

A lawful marriage presumes that the parties at least undertook efforts to satisfy the state’s requirements for a valid marriage, one of which is to obtain a marriage license. Consequently, the trial court did not err in concluding that a valid marriage did not occur under Oregon law, given the evidence that the parties intended a purely religious ceremony and that a legal marriage would occur later, and took no steps to obtain a marriage license, which enjoys particular significance where Oregon’s general savings clause is sought to be invoked.

The court rejected the wife’s attempt to utilize New York law to support her proposition that a legal marriage can be found from a purely religious ceremony despite the absence of a marriage license. It observed: “New York law, unlike Oregon, expressly provides that a party’s failure to obtain a marriage license does not render a marriage void. As a result, we find New York law in apposite.”

Application. This case illustrates the importance of ministers being familiar with the legal requirements for solemnizing marriages in their state. A good place to start in familiarizing yourself with your state’s requirements is the local office that issues marriage licenses. In many states, this is the county recorder’s office. Often, these offices have compiled a checklist of legal requirements for solemnizing marriages that will be of great value to ministers. Preure v. Benhadj-Djillali, 15 So.3d 877 (Fla. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

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Legal Developments

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

Richard R. Hammar, J.D., LL.M., CPA

Key Point. The recognition of same-sex marriages by a state court or legislature will not require clergy to perform such marriages, or compel churches to allow their facilities to be used for them, in violation of their religious beliefs.

The Iowa Supreme Court unanimously ruled that a state law defining marriage as a union between a man and a woman was invalid because it violated the constitutional rights of same-sex couples who desired to marry. The Iowa legislature amended its marriage statute in 1998 to define marriage as a union between only a man and a woman. Despite this law, the six same-sex couples (the “plaintiffs”) asked a county recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the plaintiffs were unable to marry. Except for the statute defining marriage as a union between a man and a woman, the plaintiffs met the legal requirements to marry in Iowa.

The plaintiffs asked a court to declare the marriage statute unconstitutional so they could obtain the array of benefits of marriage enjoyed by heterosexual couples. They identified several disadvantages associated with their inability to marry, including: (1) the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections; (2) denial of several tax benefits; (3) more cumbersome adoption proceedings.

The county identified five reasons in support of the statute defining marriage as a union between a man and a woman: (1) promoting procreation; (2) promoting child rearing by a mother and a father within a marriage; (3) promoting stability in an opposite-sex relationship to raise and nurture children; (4) conservation of state resources; and (5) promoting the traditional notion of marriage.

The plaintiffs claimed that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. They noted that many organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, supported the conclusion that same-sex parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, “There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: [Same-sex] parents are as likely as heterosexual parents to provide supportive and healthy environments for children.”

A trial court concluded the state marriage statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and ruled in favor of the plaintiffs. The case was appealed to the state supreme court.

The supreme court’s decision

The state supreme court ruled that a statute that treats persons differently will be permissible under the state constitution’s guarantees of due process and equal protection of the laws only if “substantially related to an important governmental objective.” The court considered each of the five justifications cited by the county in support of the marriage statute, and concluded that none of them was substantially related to a governmental objective. It observed, in part:

We begin with the county’s argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people …. The ban on same-sex marriage is substantially overinclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children ….

The county also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the county points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the county fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective …. The statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose ….

Having examined each proffered governmental objective … we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.

Religious institutions and clergy

Will ministers in Iowa be forced to perform marriages for same-sex couples in violation of their religious beliefs? Will churches be compelled to make their facilities available for same-sex marriages? Here is how the court responded to such concerns:

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief ….

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more ….

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—.religious or otherwise—.by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

Application. The court’s ruling contains an unequivocal recognition of two fundamental principles: (1) no church will be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister will be required to perform a marriage in violation of his or her religious beliefs. In other words, the very concerns that are being raised by some church leaders in the aftermath of the court’s decision were anticipated and addressed by the court itself. Varnum v. Brien, 2009 WL 874044 (Iowa 2009).

Resource. For a comprehensive look at this topic, purchase the downloadable Feature Report, “What Clergy Should Know About Same-Sex Marriages,” at ChurchLawAndTaxStore.com.

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

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Legal Developments

Minister Sanctioned for Failure to Follow State Marriage Requirements

Familiarize yourself with state laws regarding marriage.

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only "ordained" or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

An Arizona court ruled that a marriage between a man and woman was legally valid despite their failure to record their marriage license as required by state law, and, that the only consequence of this omission was criminal sanctions (a misdemeanor) against the minister who performed the marriage ceremony. An adult male (Dennis) was charged with bigamy, a class five felony. The state offered evidence at trial showing that Dennis married a woman in 1990, and while still married to this wife married a second woman in 2000. Dennis obtained a marriage license on the same day that he married his second wife. They both signed it following a wedding ceremony, as did the minister who officiated at the ceremony and two witnesses. The minister handed the license to Dennis at his request, but Dennis never recorded the license. He insisted that he could not be guilty of bigamy since he never entered into a second marriage due to the fact that the marriage license was not recorded as required by state law. A jury found Dennis guilty of bigamy, sentenced him to three years of supervised probation following a 15-day prison sentence.

An appeals court affirmed Dennis's conviction. It noted that to convict a person of bigamy the state "must prove that a person knowingly has married another person, and that the accused would have had a valid subsequent marriage under Arizona civil law but for his or her earlier, ongoing marriage." The court noted that Arizona law specifies that "a marriage license shall be signed by both persons married, two of the witnesses to the marriage ceremony and the person who solemnized the marriage, who shall return the signed marriage license to the clerk of the superior court for recording." The court agreed with Dennis that Arizona law requires that a marriage license be recorded, but pointed out that "nothing in that or any other pertinent statute establishes what effect, if any, the failure to record has on the validity of a marriage." It concluded that a failure to record a marriage license does not affect the validity of the marriage. Rather, the only consequence is the potential criminal liability for the minister who performed the defective ceremony:

Notably, the requirement that a marriage license be filed and recorded is directed at the official who solemnizes a marriage, not the parties to the marriage. And, the only express sanction for the failure to file and record the license is likewise directed exclusively at the official (official who has failed to record license commits class two misdemeanor). Together those provisions suggest that the legislature intended to enforce the recording requirement by creating incentives for the relevant official to carry out that duty—rather than by invalidating the marriage altogether, a sanction that would, under most circumstances, impose significant legal consequences on the marrying parties for a mere ministerial oversight. We therefore … reject Dennis's claim that the mere failure to record a marriage license invalidates the marriage.

Application. This case illustrates an important point. Under the laws of most states, procedural defects associated with a marriage ceremony do not invalidate the legal validity of the marriage. Rather, the consequence for such defects is criminal sanctions on the officiating minister. As a result, it is imperative for ministers to be familiar with the legal requirements that pertain to marriages in their state. This is especially true for new ministers, and for ministers who have recently moved to another state. State v. Guadagni, 178 P.3d 473 (Ariz. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, January/February 2009.

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Legal Developments

Restraining Orders

A woman’s right to be protected from abuse, harassment, and stalking outweighed her husband’s perceived constitutional right to attend the church of his choice.

Richard R. Hammar, Attorney, CPA
Bio

A Louisiana court ruled that a restraining order prohibiting a husband from going within 100 yards of his wife's residence did not violate the husband's constitutional right to attend his church that was located within 100 yards of his wife's residence.

Courts frequently issue restraining orders preventing a specified person (usually a current or former spouse) from being within a designated distance of a person in need of protection. A trial court in Louisiana issued such an order following a hearing in which a wife testified that her husband threatened her life with a knife, and engaged in frequent acts of pushing, shoving, choking, and beating. The court's order prohibited the husband from going within 100 yards of his wife's residence. Within a few months the husband was found in contempt of court for going within 100 yards of his wife's residence. A trial judge imposed a prison sentence of six months with credit for time already served.

The husband asked the court to reduce the 100-yard requirement to 50 yards so that he could attend his church which was located more than 50 but less than 100 yards from his wife's residence. He testified, "I want to attend church, and my wife's house is right at a hundred 100 yards, so I haven't been attending church. If it's set at fifty 50 yards then I can attend church and not be in violation of the protective order."

A trial court rejected this request, and this ruling was affirmed by a state appeals court. The court concluded: "We find [the husband's] argument that the 100 yard distance requirement imposed by the trial court violates his constitutional right to attend the church of his choice to be without merit. From the evidence contained in the record it is evident that the church to which [the husband] refers is in very close proximity to [his wife's] home. Considering the fact that the trial court found [him] in contempt of court on three different occasions for either contacting his wife or for going near her residence, we find no abuse of the trial court's discretion in its finding that her right to be protected from abuse, harassment, and stalking outweighs her husband's perceived constitutional right to attend the church of his choice." Francois v. Francois, 941 So.2d 722 (La. App. 2006).

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Legal Developments

Can a court force a mother to take her son to church?

The state may not require any citizen to attend religious services.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-03-01 Recent Developments

Marriage and Divorce

Richard R. Hammar, J.D., LL.M., CPA

• Does a civil court have the authority to order a mother to take her 7-year-old son to church? That was the issue before a Virginia appeals court. A trial court awarded custody of a 7-year-old boy to his father following the parents’ divorce. The mother was granted visitation rights on every other weekend, holidays, and during the summer months. However, the trial court stipulated that on weekends when the mother had custody she would either take the child to church on Sunday, or permit the father to do so. The trial court concluded that this was a reasonable accommodation given the fact that the child had been raised in a very religious home and always had gone to church. The mother had regularly attended church during the marriage, but she said she did so because of the her husband’s insistence, and that she never agreed with the church’s teachings and found the atmosphere “intolerable.” A state appeals court ruled that the trial court erred in requiring the mother to take her son to church. The court observed: “She is required to attend church with her son or suffer the penalty of losing a portion of her visitation time. Regardless of the trial judge’s motivation, the state may not require a citizen to attend any religious worship.” Carrico v. Blevins, 402 S.E.2d 235 (Va. App. 1991).

See Also: The Present Meaning of the First Amendment Religion Clauses

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m55 c0292

Legal Developments

Child Custody and Religious Beliefs

Can a court remove children from a parent on the basis of the parent’s religious beliefs?

Richard R. Hammar, Attorney, CPA
Bio

• Did a trial court abuse its discretion in removing 2 children from the custody of their father because of his conservative religious beliefs? Yes, concluded a Pennsylvania state appeals court. A couple was divorced, and primary custody of their minor children was awarded to the father. Following the divorce, the mother began living with a new boyfriend (the two were not married), while the husband continued to live in the traditional family home and enrolled the children in a fundamentalist Christian school. Three years later, the mother asked the court to award primary custody of the two children to her. She based her request largely on the father's fundamentalist religious beliefs and his insistence that the children attend a church-operated school. The trial court agreed with the mother's request, and ordered the children removed from their father's home and transferred to their mother. The trial court found no "fault" with the father's raising of the children except for his religious beliefs. It observed:

On the surface this seems like an ideal adaptation under the circumstances but it is the degree to which the father has pursued "life in the Lord" that has deprived the children of social and educational opportunities and has presented them with a singleminded approach to life that is very restricted in view and allows for no spontaneity, artistic expression or individual development of rationale or logic or even just pursuit of ordinary curiosity. These children are being raised in a sterile world with very rigid precepts, with no allowance for difference of opinion, and no greater breadth than the doctrinaire limits of the religious beliefs.

The father appealed the court's decision, and a state appeals court ruled in favor of the father. The court found "no evidence" to support the trial court's decision. To the contrary, "the testimony indicates that [the father] has not pursued religion at the expense of neglecting his children …. He has played an active role in the children's educational, recreational and spiritual lives. [Further], the children are well mannered, affectionate toward each other, happy, responsible and well adjusted. This is not the case of a parent engulfing his life in religious pursuits and abandoning his children." The court also rejected the trial court's conclusion that the children's education at a fundamentalist Christian school was deficient. It noted that the school curriculum "covers the core educational subjects as well as a full course in Christian non-denominational religious education" and that "teachers are graduates of religious affiliated colleges." It concluded that "there is no evidence that would support the trial court's belief that the children have been deprived of social and educational opportunities and have been restricted in artistic expression or individual development of logic because of their attending a religious school." Further, there was "no basis for the trial court's belief that the childrens' horizons would be broadened by removing them from the 'sterile' environment of a religiously oriented school." Accordingly, the appeals court reversed the trial court's decision, and ordered the children to remain with their father. Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. 1991).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m55 c0691

Posted:

Legal Developments

Religion and Child Custody

What control do courts have over a child’s religious upbringing?

Richard R. Hammar, Attorney, CPA
Bio

Does a court have the authority to prohibit a father from taking his children to religious services contrary to their mother's faith?

No, concluded a Pennsylvania state court. The mother was a devout Jew, and the father a nonpracticing Catholic. Throughout ten years of marriage, the couple regularly attended Jewish religious services, and raised their three children in the Jewish faith.

The divorce decree prohibited the father from taking the children to any religious services that were not Jewish. The father challenged this order, since he wanted to reserve the right to take his children to Catholic services on occasion. The mother defended the order on the ground that allowing the father to take the children to non-Jewish religious services would confuse and damage the children.

She also pointed out that she was a devout adherent of the Jewish faith, while the father was a nonpracticing Catholic. A state appeals court ruled in favor of the father. It concluded that it was inappropriate for the trial court to prohibit the father from taking the children to Catholic services while he had custody of them.

The court observed that

"the vast majority of courts … have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit, during any and all periods of legal custody or visitation without restriction, unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in the absence of the proposed restrictions."

The court adopted this view as the law of Pennsylvania. The court stressed that a "substantial threat of harm" did not include "the speculative possibility of mere disquietude, disorientation, or confusion arising from exposure to contradictory religions." It also concluded that a court could not take into account the "devoutness" of the respective parents in making a decision regarding religious upbringing.

The court lamented that modern child custody cases "are far more difficult than the one which taxed King Solomon's great wisdom. King Solomon was faced with the difficult task of determining the child's true mother from the false claimant. Modern courts, on the other hand, are faced with a more agonizing choice between two claimants whose assertions of parentage are both unquestionably true." Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990).

Posted:

Legal Developments

Marriage and Divorce

The Nebraska Supreme Court ruled that a court order prohibiting a noncustodial parent from indoctrinating

Richard R. Hammar, Attorney, CPA
Bio

The Nebraska Supreme Court ruled that a court order prohibiting a noncustodial parent from indoctrinating his child in the Jehovah's Witness religion did not violate his constitutional rights.

A married couple obtained a divorce shortly after the husband converted from Catholicism to the Jehovah's Witness religion. Prior to the divorce, the husband's conversion had led to bizarre and violent behavior in the home.

The court granted custody of the couple's 6-year-old son to the mother, and prohibited the father from involving the boy in any of his Jehovah's Witness beliefs or practices. This ruling was based on the testimony of a psychologist that the boy was afraid of his father and his religious beliefs and did not want to be with him. The father claimed that his constitutional right to freely exercise his religion was violated by the court's order barring him from exposing his son to Jehovah's Witness beliefs and practices.

He acknowledged that he wanted to take his son with him on his door-to-door evangelistic missions. The state supreme court concluded that the trial court's order was proper, since it in the best interests of the child. It noted that "courts have a duty to consider whether religious beliefs threaten the health and well-being of a child." If they do, as they did in this case, then a civil court is free to protect a child against such influences. LeDoux v. LeDoux, 452 N.W.2d 1 (1990).

Posted:

Legal Developments

Abortion

Church Law and Tax 1989-01-01 Recent Developments Abortion Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1989-01-01 Recent Developments

Abortion

Richard R. Hammar, J.D., LL.M., CPA

• Does a husband have a constitutional right to “veto” his wife’s decision to have an abortion? No, concluded an Indiana appeals court. The court relied on a 1976 decision of the United States Supreme Court in which the Court ruled that “a state may not constitutionally require the consent of the spouse … as a condition for abortion during the first 12 weeks of pregnancy,” and accordingly, that “the state cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” The Indiana court, though noting that the right of abortion and the authority of the United States Supreme Court to legislate morality were “troublesome to some members of this court,” found itself bound by the Supreme Court’s pronouncement, and accordingly denied the father a veto power over his wife’s decision to have an abortion. The Indiana court observed that “the obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Conn v. Conn, 525 N.E.2d 612 (Ind. App. 1988).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m01 c0189

Posted:

Legal Developments

Court Had Authority to Compel Jewish Male to Submit to Jewish Ecclesiastical Court

A New Jersey state appeals court ruled that it had authority to compel a Jewish

Richard R. Hammar, Attorney, CPA
Bio

A New Jersey state appeals court ruled that it had authority to compel a Jewish male to submit to the jurisdiction of a Jewish ecclesiastical court.

The man and his wife were married in 1969, and executed a written contract committing themselves to be bound by the laws of Moses and Israel. The spouses were later divorced, and the wife sought to remarry. However, under Jewish law, she could not remarry without first obtaining a "get" (an ecclesiastical release) from her former husband, since under Jewish law the two would continue to be married until he "released" her.

The court consulted with the Bible and the Encyclopedia Judaica to evaluate the significance of Jewish marriage and divorce, finding such study "necessary because the parties have signed a contract … committing themselves to be bound by such law."

The court concluded that "to compel the [husband] to submit to the jurisdiction of the Jewish ecclesiastical court, the 'Bet Din,' and initiate the procedure to secure a 'get' is within the equity powers of this court." The court's ruling directly contradicts a 1969 ruling of the United States Supreme Court prohibiting the civil courts from ever again resolving disputes on the basis of interpretation of religious doctrine or polity. Burns v. Burns, 538 A.2d 438 (N.J. Super. 1987)

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