Denial of Equal Rights to Religious Minorities and Non-Believers in The United States

B. H. HARTOGENSIS

Yale Law Journal, vol. 39, pp. 659-681 (1930)

  1. Christianity Part of Our Law
  2. Are Oaths of Believers Alone Believable?
  3. Official Oaths Founded on Christian Belief
  4. Compelling Marriage in the Face of the Church
  5. Sunday Laws
  6. Blasphemy
  7. Bible Reading in the Schools

COMPELLING MARRIAGE IN THE FACE OF THE CHURCH

There is no Biblical basis for requiring participation of a clergyman in order to legitimize a marriage. Laws which required clergy were for the benefit of ecclesiastical organizations, not in obedience to God's commandments.

However, there certainly are Biblical requirements for a valid marriage, and it is not unconstitutional for a state to enforce these Biblical principles. The Seventh Commandment ("Thou shalt not commit adultery") has been the basis for many statutes and court decisions in American legal history.

Laws against homosexual "marriages" based on Levitical principles are not "unconstitutional." When Jefferson and Madison submitted the Virginia Statute for Religious Freedom, they also submitted other Bills, including, "A Bill for Punishing . . . Sabbath Breakers," "A Bill for Appointing Days of Public Fasting and Thanksgiving," and "A Bill Annulling Marriages Prohibited by the Levitical Law." Obviously, those whose religious faith required them to marry outside the laws of the Bible did not have "religious freedom." All these bills were for a CHRISTIAN nation.

Church domination so far as it interferes with the right to marry has been removed everywhere in the United States except in Maryland and West Virginia, where alone religious sanctification of every lawful marriage is both by statute and decision unqualifiedly and unconditionally required. Common law marriages, by contract per verba de praesenti, are not everywhere allowed, and of course not in these two states. But most states by constitution, statute, and decisions have gone to the length of providing that when parties to a marriage have procured a religious officer to sanctify a religious ceremony for them, believing him duly authorized, and they have cohabited, they are considered fully married even if he lacked authority. Code provisions and decisions everywhere now confirm this.[67] Maryland again was very backward, and not until 1925 in Knapp v. Knapp [68] did it announce its adhesion to this palpably just maxim of law. Before the amendment of June, 1927, Maryland law penalized those who had left the state to be married because they did not wish to have their marriage sanctified religiously or by a minister whose authority was doubtful or offensive. And until 1927 the right to perform marriage vested exclusively in Quakers and in Ministers of the Gospel.[69] In Utah the solemnizer must be a priest, but it is open to question whether this means a priest of the Mormon Church.[70] In Rhode Island, Jews may intermarry uncle with niece, a Talmudic privilege denied elsewhere.[71] The authority of the marrying minister is often expressed in the statutes of the states in words of doubtful meaning requiring judicial interpretation. This authority should everywhere be expressly made unequivocal by bestowing rights on all religious organizations alike, with the right of a civil marriage to those who wish it.

The Russell Sage Foundation has rendered a great public service by placing a manual of the laws of marriage and divorce, carefully prepared and documented, within the reach of all.[72] And because of this publication of comparative legislation, there is likely to be further emancipation in this direction.


[67] E.g., GEN. LAWS MASS. (1921) c. 204, 42.

[68] 149 Md. 217, 131 Atl. 329 (1925). This decision came in time to save an awkward situation. In 1929 at Elkton, Maryland, long known as the Gretna Green or Marriage Mill for the nearby states of Pennsylvania, Delaware and New Jersey, because of placing no restrictions of residence or notice, an advertising marrying parson was convicted of performing marriages when not authorized to do so by his religious organization. The five hundred couples thus married illegally were pronounced "legally wedded," under the Knapp decision.

[69] MD. ANN. CODE (Bagby, 1924) art. 62, 4.

[70] UTAH LAWS (1917) 2971.

So is the author complaining? Here Jews are given freedom to practice their religion! What the author really wants, it becomes clear, is freedom only for Secular Humanists.

[71] R. I. GEN. Laws (1923) c. 287, 4.

[72] MAY, MARRIAGE LAWS AND DECISIONS IN THE UNITED STATES (1929)


  1. [Introduction]
  2. Christianity Part of Our Law
  3. Are Oaths of Believers Alone Believable?
  4. Official Oaths Founded on Christian Belief
  5. Compelling Marriage in the Face of the Church
  6. NEXT: Sunday Laws
  7. Blasphemy
  8. Bible Reading in the Schools


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