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Subject Area: Law
Topic: The American Revolution and Constitution

§ 191.: Regulation of the marriage ceremony.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 191.

Regulation of the marriage ceremony.—

It requires no painstaking elucidation of the grounds upon which to justify State regulation of the ceremony, by which is established an institution, in which the welfare of the State is so vitally concerned, as marriage. It is certainly not unreasonable for the State to provide a fixed, certain mode of entering into marriage, provided the ceremony, thus selected, is of such a character, that no one would be prevented from entering into the status, on account of religious scruples, or an inability to comply, which did not arise from his legal incapacity for marriage. According to the old English law, the marriage was held to be invalid, unless the ceremony was performed by a clergyman of the Church of England.1 So, also, in the Papal States, before their annexation to the kingdom of Italy in 1870, no marriage was valid unless it was solemnized by one in holy orders in the Catholic Church. A religious ceremony has been required in other countries. It is manifest that, while the State may prescribe that a religious ceremony, possessing certain features, shall constitute a valid solemnization of the marriage, it would be a violation of the religious liberty, guaranteed to all by the American constitutions, if the State compelled one, against his will, to submit to a religious ceremony of marriage, or else be denied the privilege of entering into the marriage state. The ceremony prescribed by the State, and made obligatory upon all, must be of such a character that all can conscientiously, comply. A regulation, like the German law of marriage, which makes a ceremony before a civil magistrate necessary to the validity of a marriage, would not violate any constitutional right, not even of those who view marriage in the light of a religious sacrament, for the religious ceremony is not forbidden.

The policy of our country, in the main, has been to leave the law of marriage, in respect to the formality of its solemnization, as it was in all Christendom, before the Council of Trent, which declared it to be a sacrament and enjoined a religious ceremony, viz.: that no particular ceremony is required, simply a valid contract in verba de præsenti, by which the parties assume to each other the relation and duties of husband and wife. And where statutes provide for the issue of a marriage license, they do not make the license necessary to the validity of the marriage, the only effect of the statute being that the minister or magistrate who performs the ceremony is subject to a fine, if he officiates in a case in which no license has been granted.1 But the present state of the law furnishes no argument against the constitutionality of a statute which requires some formal ceremony, subject to the exceptions and limitations already mentioned.

[1]See Reg. v. Millis, 10 Cl. & F. 534. The decision in this case was by a divided court, and the conclusion has been warmly opposed, although acquiesced in, in England. See 1 Bishop Mar. & Div., §§ 270-282.

[1]See State v. Madden, 81 Mo. 421; State v. Walker, 36 Kans. 297, in which the constitutionality of a law was contested and sustained, which made it a misdemeanor for any one to solemnize a marriage where the parties have not previously obtained a license.