Originally published May 10, 2012
One of the things one learns doing French Canadian genealogy is that in 17th century France, while two Catholic cardinals served as Chief Minister to the King, religious weddings were not recognized as legal contracts. It was necessary for the colonists to sign a marriage contract in the presence of a Royal Notary for the marriage to be legal. A religious ceremony could be performed after the civil contract was certified. Napoleon spread the idea throughout Europe and today, most European countries (notably not those of the British Isles) do not recognize a religious ceremony as the legal marriage.
Having been an English colony, America adopted the British method, which was tied in to the fact that the King of England was the head of the Church of England. A marriage license could be certified by a clergyman.
A lot goes into creating a nation, so it is understandable that the simple matter of separating a civil contract of marriage, which carried with it certain legal obligations and rights, from a ceremony that binds two people within the precepts of their religion just didn’t occur to our Founding Fathers. They knew it was important to protect us from religion dictating civil law. They knew that those who came to America for religious freedom did so to escape countries where one church controlled civil law and membership in another church restricted a person’s life choices. But on this one small issue, they were blind.
It is long past time that the power to certify a civil contract which carries with it civil rights and responsibilities and can only be dissolved in a civil court be removed from any clergy of any faith. No clergyman can declare a marriage legally null and void. If they are barred from dissolving the contract, how can they been empowered to create it?
Conservatives talk about “traditional marriage” without understanding that the traditions of their faith are not the precedents of law around the world. In Muslim countries there are no civil marriages, all marriages are religious. We do not acknowledge Muslim religious marriages without a civil license in America. In all but two of our ancestral European countries, only civil marriages have legal validity and it has been that way more or less for over 200 years.
We need a Constitutional Amendment that expands and defines the First Amendment guarantee of freedom from state religion and freedom of worship. It should state that no civil legal contract can be fulfill with a religious ceremony. It should state that no law or amendment can be passed if it is based solely on religious principles and not on the need to provide legal protections to the people. It should state that definitions that impact our laws should not be based on religion but on science, as in the definition of when life is viable and independent and not when the soul is implanted.
Like the Second Amendment, which was written in language that made sense in the 18th century, the First Amendment did not go far enough in expressing what it was intended to protect and define. We must rely on the Federalist Papers and the writings of those who wrote the Constitution to understand what was intended, and far too many people don’t bother to read them or understand them. The Second Amendment was intended to provide a fledgling nation with a militia to supplement a very small standing Army, not to give ordinary citizens the right to own weapons the founding fathers could not even imagine. The First Amendment was intended to protect us from a religion writing our civil laws and controlling the lives of those who don’t belong to that religion. That aspect got lost in the first two hundred years of our nation, and it is time to reassert it.