Marriage

Pastor Sues Michigan over Right to Administer Purely Private Marriages

Does the state have authority to control who may be married if they aren't seeking recognition or benefits?

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Neil Patrick Carrick
Photo provided

What does it mean to "solemnize" a marriage, anyway? How a church or a minister approaches the word versus how the state of Michigan legally considers the term is the focus of a new lawsuit in the state.

Detroit Pastor Neil Patrick Carrick has celebrated the new year by filing a lawsuit against Michigan's governor and attorney general based on laws that declare that it's illegal for any person—both government clerk and private religious official—to "solemnize" a marriage that the state does not recognize. The penalty: a $500 fine.

These laws seem to assume that every marriage or wedding ceremony is for the purpose of getting legal recognition from the state. Carrick is challenging that concept, and Judge Judith Levy has ordered the state to respond this week and answer whether Michigan's laws allow "civil and criminal sanctions of persons who improperly solemnize marriages authorize the state to impose those sanctions when the ceremony is purely private in nature, and not intended to have legal effect?"

"Everybody who performs a wedding ceremony works as an agent of the state," Carrick told Reason when explaining the purpose of his lawsuit. The marriage process in Michigan requires citizens to get their paperwork from the state, bring in to either an appropriate official or a recognized religious official for the ceremony, and then return the appropriate documentation. But the laws also obligate those who solemnize private marriage ceremonies, like Carrick, to make sure the marriage is legal under state law. He had previously challenged a ban on solemnizing same-sex marriages.

Now that the Supreme Court has mandated recognition of same-sex marriages, the issue still exists. There are a number of reasons why couples (or more, for that matter) might want to seek religious and community recognition of their relationships without turning to the state to demand legal recognition. That's what Carrick is fighting for. And it's not necessarily just about people who want to get for the "sake" of being married. Some people want to declare their covenant to each other, to family, to members of the community, et cetera.

"It's moreso that they necessarily have to be part of the state system, but are not necessarily seeking state entitlements," Carrick says. "Participants in marriages aren't necessarily looking for the state to affirm their marriage."

One example Carrick provided to MLive in Michigan was of an elderly couple who decides they want to get married, but don't want to file for state recognition for fear the status change could interfere with post-retirement benefits. Can that couple be wed in holy matrimony without registering with the state? It seems like the answer should obviously be "yes," but Carrick is having to push and get a judge to order state officials to explain the law. When the state uses the word "solemnize," is it referring to the way religious or private people might invoke it, or does it mean the legal definition that includes intent to enter into an actual legal contract?

Carrick wants the state to explain which and thinks he'll win either way. If the state argues that it does have the authority to block private "solemnization" of marriages that don't comply with state law, even with no intent to register such marriages with the state, it would certainly seem to be a violation of the First Amendment rights of people to call themselves what they choose. If the state responds that they're referring to the legal term of "solemnization" and don't have the authority to prosecute ministers for private marriages that aren't recognized by state law (unless these couples attempt to file for legal recognition), then the law is clarified.

Carrick says he doesn't know if anybody has been prosecuted for actually violating the law. It would be tough to track, because it's considered a misdemeanor. What Carrick wants is to prevent a situation where prosecutors believe it's up to their discretion as to whether they can prosecute.

"If they don't tell the answer and a judge doesn't order it, a prosecutor can say it's up to the prosecutor to decide," Carrick says. "'It's my opinion—it's what I'm going to do.' Prosecutors have used [laws against cohabitation or adultery] to threaten people to get them to testify in hearings. They say, 'We are going to prosecute you on cohabitation or adultery parts of the law unless you testify.'" Carrick says he wants to make sure prosecutors can't use the vague wording of these laws to do the same to those who have marriages that aren't recognized by the state of Michigan.

Judge Levy has ordered both sides in the case to answer her question as to whether Michigan's marriage laws permit government authority over ceremonies that are "purely private" and don't seek state recognition or entitlements by January 8. Read Carrick's lawsuit here

NEXT: Pharmacists Can Now Prescribe Birth Control in Oregon. Why Not Make It Over-the-Counter Everywhere?

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  1. *turns on the John signal*

    1. SURE, now that the religious right have lost the war they’re interested in government free marriage!
      /runs free interwebz

      1. hey, we’ve ALWAYS been interested in and wanting government to butt OUT of things like marriage. Its NOT a state concern. Never was.

  2. Pastor Sues Michigan over Right to Administer Purely Private Marriages
    Does the state have authority to control who may be married if they aren’t seeking recognition or benefits?

    Yes.

    1. The authority? Sure.

      The right? No.

    2. They always eventually show up for the benefits. ALWAYS.

      1. One does not simply walk into Golden Corral, and not hit the Chocolate Fountain.

    3. on what basis? Cite your source.

  3. it’s illegal for any person?both government clerk and private religious official?to “solemnize” a marriage that the state does not recognize

    That’s interesting. I was frequently, and screechily, informed here during the marriage wars that there were no such laws.

    1. Huh, I dont remember anyone claiming that. This is what people who support state marriage hsve been supporting.

      1. I do recall asking whether it was actually illegal anywhere for a church to perform a gay marriage that would not/could not be licensed. It was part of the argument over whether gay marriages were actually illegal, or were merely unrecognized.

        Good to see these laws getting challenged, and hopefully thrown out.

    2. There’s also one in NC. In fact, a UCC pastor sued over that one, too.

      1. I’d’ve thought ULC rather than UCC.

    3. I do think I see what you mean, but there is a difference between what is legal for the couple and for the officiant.

      1. It has the same net effect, regardless of whether the officiant or the couple is fined. Just as it would have the same chilling affect on free speech if publishers (but not authors) were fined for speech the government doesn’t like.

        1. While insanely stupid and hopefully thrown out, this seems like one of those laws that can easily be ignored. Who would ever know, other than attendees?

          If a couple elopes in secret then later has a “real” wedding, is the officiant in violation of the law? He is solemnizing something that isnt an official act, as tgat already occurred.

          And solemnizing seems an obvious 1st amendment action.

          1. Well, anyone the attendees told would know. And presumably you wouldn’t really be able to go around telling people you were married afterward without serious risk of them realizing what had happened. It wouldn’t simply be a private marriage; it would have to be a secret one.

            1. The couple can tell, they arent at risk.

              1. But why would the officiant assume that much risk?

              2. But the shaman can’t. And if it is found out, said shaman can have the law held above his or her head. “Do what we say or we’ll decide to enforce this law.”

            2. it would have to be a secret one.

              How romantic. It’s like a Nicholas Sparks novel or something or something out of Downton Abbey. I’m gonna go bang a scullery maid my formidable crone of widowed mother wouldn’t approve of and have lots of bastard (but not really because we’re secret-married) children to celebrate.

              1. I’m gonna go bang a scullery maid my formidable crone of widowed mother wouldn’t approve of and have lots of bastard (but not really because we’re secret-married) children to celebrate.

                Well, bastardy and inheritance are all legal concepts. Not to put too fine a point on it, but when children start to get involved, the state taking some kind of a position on the matter is inevitable.

                1. Stop trying to stomp on my secret-marriage to a scullery maid, kb. I don’t need you thinking through the consequences here, I just need to convince the comely but chaste scullery maid that she’s done her moral duty by secret-marrying me before a clergyman.

                  1. the comely but chaste scullery maid

                    … squirting out a bunch of bastards? Is there a turkey baster involved in the process to maintain chastity?

            3. What exactly is the punishment for ‘married without state permission’?

            4. What about people who were married in another jurisdiction (possibly another country) & happened to be in that state at the moment?

          2. While insanely stupid and hopefully thrown out, this seems like one of those laws that can easily be ignored. Who would ever know, other than attendees?

            Sure, similar to how it would be easy to throw out Utah’s prohibition on calling your multiperson relationship ‘marriage’ and saying that X and Y are your spouses. You can live with multiple people in a sexual relationship, share bills and raise kids with them – just don’t dare say your *married* to them, because that’s illegal.

        2. Not really same effect, as a couple can just declare themselves marriage like it used to be done before the state got involved.

          Analogy fails as a publication has a publisher by default. Marriage doesnt have to have a solemnizer.

          1. Marriage doesnt have to have a solemnizer.

            Depends on who you are. For Catholics, such as the guy in this article, marriage is a sacrament and has to be solemnized by clergy.

          2. Actually – it does.

            ‘Living together’ doesn’t, but a marriage is a *formal* arrangement announced to your community.

        3. Would the couple who decided to be married and did so sans officiant be themselves then the guilty officiants?

          Personally, I like these laws and wish fewer types of marriages were recognized. It would be a ready excuse not to have to waste an entire Saturday and a gift attending weddings.

          1. Dude, you have it all wrong. We need to *encourage* secret weddings because they can’t invite you to it or ask for presents as it is a SECRET. I’m also in favor of secret pregnancies, secret relocations and secret birthdays. If we communally forgot that we randomly assigned the Christ-child the winter solstice as a birthday to co-opt pagan holidays and arbitrarily exchange gifts on that day I wouldn’t complain either.

            1. Take your War on Christmas somewhere else. That’s a day off work the government gives us. I’m talking about a nice Saturday, usually in summer, where I have to put on a tie – JUST LIKE THE OTHER DAYS OF THE WEEK – and sit not only through some ceremony that, if it’s not Catholic, won’t count as mass for the week, but also go to some tackily structured “party” with a cash bar where two self-centered dipshits put themselves on display and all the girlfriends get in their heads that they deserve a ring, too.

              1. methnks you need to get out and about more, seems you’ve an awfully dreadful set of “friends” if their weddings are such as you describe.

            2. We need to *encourage* secret weddings because they can’t invite you to it or ask for presents as it is a SECRET. I’m also in favor of secret pregnancies, secret relocations and secret birthdays.

              I want in Jesse’s cult.

    4. Oh Tonio, don’t be silly. That’s been memory holed, with prejudice. That’s how this works.

      1. I don’t know what you’re talking about, jesse.

        1. Who are you? Where am I?

          2016!? I can’t remember anything past 1996…

    5. There were also laws and state constitutional amendments (since rendered ineffective by Obergefell) banning not only legal recognition for same-sex marriage but any interpersonal relationship of similar effect. Article I, Section 10, anyone? Those got little mention, too.

      There is no shortage of “guilty” parties.

      1. Yes, such as the Virginia Marriage Amendment, the existence of which really riled some of the “but you can get gay married if you want, just not state gay married, hurr, durr” crowd.

        1. Well, it was just Virginia’s problem and most of us don’t live in Virginia. But that is the problem with making sweeping generalizations, there are usually exceptions to them.

          1. I believe it was more than just Virginia that had statutes or constitutional amendments that ruled out marriage *or anything substantially similar* Virginia’s was just the clearest example of it.

            1. NC was the same, I believe.

    6. I was frequently, and screechily, informed here during the marriage wars that there were no such laws.

      I was most likely one of the screechers. And while I’m not entirely convinced this counts as making a marriage illegal, I will begrudgingly admit that you failed to try to prove your argument at the time by specifically citing this law.

      1. I did mention the Virginia Marriage Amendment repeatedly. That barred anything approximating marriage but was never tested in the courts before being nullified by Obergefell. Some people made a big deal over the fact that there were no penalties specified by the VMA. FWIW, I didn’t even know about the Michigan law at the time.

          1. I didn’t offer one.

      2. No, Fist, you’re not a screecher.

        1. He is a master of sarcasm, however.

      3. In religion class, it was clear that solemnising a marriage had no effect on its validity, that it was just a way of making a big public church hullaballoo over it, something originally employed only in the marriages of high noblefolk and so forth, but which gained broader currency as a historical reaction to the establishment of official state-administered marriages. It also tended to give the misling appearance of that the presiding church official was actually confecting the marriage, when he also has no real effect. People didn’t stop getting married during times in which solemnising of marriage was forbidden; they just didn’t make a big affair out of it.

  4. Carrick wants the state to explain which and thinks he’ll win either way. If the state argues that it does have the authority to block private “solemnization” of marriages that don’t comply with state law, even with no intent to register such marriages with the state, it would certainly seem to be a violation of the First Amendment rights of people to call themselves what they choose

    This is interesting because I personally know gay couples who were “solemnizing” their relationships back in the 90s before legal recognition of gay marriage was seeing light at the end of the tunnel.

    I’m not sure what the state’s argument is here, and I haven’t ready any of the linked articles, but I don’t see what ‘harm’ is being done to “The People” if they’re not seeking recognition of bennies.

    1. The harm is ultimately being done to the state. On one hand you’re depriving the state of revenue from those marriage licenses, OTOH you’re denying the state the ability to control who can and can’t get married.

      1. OTOH you’re denying the state the ability to control who can and can’t get married.

        This of course is it.

        1. It also is, at least potentially, protecting the non-working spouse in a single-income household.

          Tom and Larry get married. Tom works full time, Larry stays home, taking care of the dogs and flowers and house and kids and shit. Tom and Larry get some Shaman to bless their union, but don’t set it up with the state. Tom starts a business and ends up with millions, but never puts Larry’s name on any of it. Tom ends up leaving Larry for a steaming bowl of Cream of Sum Yung Gai, and Larry is left out in the cold.

          Does Larry have more or less protection in divorce if the state doesn’t recognize their union? Even if Tom and Larry never, even once, got any benefit for being married, there is still this matter.

          1. Welp, if Larry couldn’t be arsed to cut a deal for some of Tom’s earnings/assets, then Larry reaps what he has sown. I see no great thundering injustice here.

            1. I am inclined to agree, but not convinced. I come from an abusive home, and without government requiring sharing of post-marriage assets, one member of my parental couple would have been SOL.

              Also, what about kids? If the state doesn’t recognize a marriage, they cannot adopt together. This means that, in a divorce, one has no claim.

              1. The state’s involvement in divying up post-marriage assets is, imo, an example of the state (poorly and usually unfairly) solving a problem that it either causes or prevents people from more effectively solving themselves.

                When two people get married, it should be up to them whether they want to join their property, and to what extent, and the details of the joining should be a customizable contract to which each party must agree. The same thing should be done with children: the parents should be required to reach a custody agreement ideally before the child is born, should the relationship dissolve. And if there is abuse (of property or children), then a judge can nullify the contract and make a new one, instead of doing what they currently do, which is retroactively write a contract without the consent of either party.

                1. The problem is, currently, when two people get married or have children, they are implicitly signing an extremely vague contract regarding how custody and property will be distributed that depends on what judge you get, what state you’re in, how much of an asshole your spouse is, etc. Most of the family court system could be rendered redundant (in basically all cases not involving abuse and whatnot) by requiring a contract to be made beforehand so everyone knows precisely what they’re agreeing to; and if, say, a woman marries a man but doesn’t insist that the man agree to forfeit some assets in the case of dissolution, then at the end of the relationship, she has only herself to blame to for not having the foresight to anticipate the eventuality; just like in the dissolution of any other contract, you don’t get to claim after the fact “but, but, I thought it would last forever!” as an excuse to rewrite the contract ex post facto.

          2. All of this could be handled by private contract and private arbitration over any disputes.

            But, as my link down below shows, the state has it’s inky tentacles into marriage, everywhere. That’s not unexpected, since they are typically the arbiter of disputes in the history of family law.

            1. I agree completely!

            2. They have to be the arbiter of disputes, since they get to use the ultimate enforcement mechanisms – asset seizure or, even jail time.
              These things are being proposed, obviously, by people who have never seen a divorced spouse proclaim: “I don’t care what some judge says. I’m gonna do what I want.”
              By all these silly libertarian scenarios of the state not being involved, there would have to be some extra-legal enforcement mechanism that would have the power to do what government already has the power to do.
              Oh, that’s right, libertarians believe in the unicorn fart powered “community policing” where people would be shamed into behaving correctly, thus no need for police, courts, laws and other “aggressive” policies.
              Silly libertarians.

          3. Yeaaaaaaah – we already have the legal structure to handle this.

            Common law marriage and paternity suits.

            You don’t bang your ‘roommate’ for years and then just get to walk away.

      2. and on WHAT BASIS do the state NEED any ability to control who can/can’t get married?

        Oh pardon me, I forgot… the “government as god” meme mandates that the all knowing all providing all wise all inclusive state manage every detail of our lives, as we are utterly hopeless AND helpless without the benevolent meddling of our “superiors”.. mankind being utterly corrupt, stupid, incompetent, infantile, base, etc.. we simply MUST have the state tell us everything we need to know. And said magnanimous magnificent state must know everything WE know…….

        1. Nope.
          The state has become involved because people turn to the state to resolve differences, without murdering each other, which some divorce proceedings would turn into.
          If you think love has a lot of power, you ought to see where hate can take you.
          The state has the ultimate power to enforce contracts, and that is what a marriage is. The state has incorporated, implicitly, all of the myriad complications that each couple would have to anticipate in writing their own contract, while under the spell of “being in love”.
          That the enforcement decisions fall to a judge’s whims is the case in almost all civil law, unless you go with a very expensive jury. Then you are subject to a jury’s whims.
          I have to believe that, at some point in the past, someone tried to avoid the responsibility of being in the marriage contract by claiming it wasn’t officiated according to law, and gaining the support of the officiant, and a legislature said: “OK, we’ll stop that from happening”.
          The idea that legislators sit around thinking of ways to fuck with people, in a vacuum, is silly. They usually respond to as issue that has been brought to their attention.

    2. One example Carrick provided to MLive in Michigan was of an elderly couple who decides they want to get married, but don’t want to file for state recognition for fear the status change could interfere with post-retirement benefits.

      That example says “we want to be married, but don’t want to be ‘legally’ married because we’d lose money from the state” to me. You don’t back an argument with self-contradictory claims.

      Yes, I know, they can continue to cohabitate without fiscal impact as an unmarried pair. I just don’t like the incongruity.

      1. I suspect the couple is religious and needs God to recognize their marriage.

        1. God before filthy lucre, then.

    3. Is there a statute of limitations on solemnizing? Because if they go after this guy, there’s going to be a whole lot of “committment ceremony” officiants sharing a cell with him.

  5. Here comes the fun.

    1. Whimmy-wham-wham-wazzle!

    1. likewise rested on a misunderstanding of the language in which these problem are couched. In How to Do Things with Words, J.L. Austin for instance writes,

      Hoo boy.

      1. How to Do Things with Words

        good title for a political primer

    2. Is this another “bored” thing?

  6. This is the dawning of Libertopia! Hopefully, not confined to Michigan, for I am a slave to not being snowed in.

  7. “not intended to have legal effect”

    That would seem to be the winning position – you cannot tell a church what they can have a ceremony about, if it is not one that has any effect on legal status, taxes, guardianship, etc.

    1. I’ll be interested to see women’s reaction to getting married without the penis smashing hammer of the state.

        1. You are right. Better stick with prostitutes. That way compensation is negotiated before services rendered.

      1. If Family Law continies to be consistent, the marriage will be invalid, but the property will still be common.

        1. Based on what?
          The marriage license, and the signing, thereof, with the imprimatur of an officiant, and witnesses, IS the contract that one is held to.
          Do you advocate implicit acceptance of a contract?
          When does that start? In the bar, when you make your pitch? When you go into someone’s abode with the intent of going through the motions of making a baby? Before, or after, you go through those motions?
          Pandora’s box could be likened to a can of worms.

  8. These laws seem to assume that every marriage or wedding ceremony is for the purpose of getting legal recognition from the state.

    I don’t know about Michigan and this specific law, but at last some laws along these lines were actually passed during the heyday of anti-SSM sentiment because even a non-legal marriage was too icky. So, not at all because they assumed that, quite the opposite.

  9. This law is bullshit. Exactly how is who I choose to share my life with any of the state’s business? Answer: It’s not.

    1. This is the obvious answer. But most of teasin’s writers and a large chunk of the commenters want state recognition of marriage, for some reason.

      1. Teasin?

        Phone commenting hard.

      2. And of course robc waltzes right past the commenters who are ok with no state marriage, but who demand that as long as the state is in the business of marrying anyone that the state extend that right equally. Why is that, robc?

        1. Because I dont give a fuck about equality?

          Do I look French?

          Its not really that as much as I waste my time on the first issue only. I dont wade into the “schools should do x”, i just call for separation of school and state. Same thing.

          I admit to sometimes wading into details of tax law instead of just calling for an SLT, so next time I do it, feel free to callme out on it.

          1. Shorter version: maximize liberty. In the long term that maximizes equality too, but it mifht not in the short term.

            If the two are in conflict, liberty always wins.

        2. And third response, notice your language. It says a lot that you used “okay with” for the first but “demands” for the latter.

    2. Until you, or the object of the sharing, decides that the sharing has come to an end, but you can’t agree on how that sharing will end, WRT any possessions/children that might have been accumulated.
      Too much focus is on the beginning of the process – you know, love and all – and not any thought as to the end, if it comes, which sometimes elicits hatred unimagined by sentient beings.
      Unless we revert to “frontier justice”, government is the ultimate arbiter of disputes, no matter how much libertarians hate to admit it.

  10. laws that declare that it’s illegal for any person?both government clerk and private religious official?to “solemnize” a marriage that the state does not recognize. The penalty: a $500 fine.

    And don’t you dare put a wafer on someone’s tongue until you’ve received your (expensive) state-sponsored license and undergone “health inspections”!

    Grotesque.

    1. Although that is a good point. The food handling used at communions, particularly the shared wine chalice, would never pass muster with the health department.

      1. Let’s hope the health department never does get involved, otherwise we’ll all lose the most innocent excuse for having mouth herpes that we have.

  11. “Everybody who performs a wedding ceremony works as an agent of the state,” Carrick told Reason when explaining the purpose of his lawsuit.

    It’s kind of like E-Verify but for wedded pairs instead of illegals and pastors instead of employers. You’ve been drafted into state service, assholes. SHUT UP AND DO YOUR DUTY.

    1. Drafted?!

      You’re in the Army now
      You’re not behind the plow
      You’ll never get rich
      You sonnovabitch
      You’re in the Army now

      /Burma Shave

      1. Alternate version:

        You’re in the Army now
        You’ll always get your chow
        You’re digging a ditch
        You sonnovabitch
        You’re in the Army now.

        1. We don’t allow recruitment propaganda here. It’s a safe environment. Like Canada.

          1. That is more like de-cruiting material…

    2. I think that potential spouses should come with a Car-Fax report.

      1. Extensive bodywork done in May 2007 to rear bumper.

        Rawr.

      2. That’s a two-way street, you know.

        1. Shit, you’re right…

          “Own’s real estate, little to no debt, solid retirement accounts”.

          You’ll attract every crazy with divorce on her mind for miles around.

          Still not seeing a downside though.

      3. 3 dozen previous drivers.

        1. Excludes drivers who took it out for a joyride one weekend as well as rentals.

        2. My ex-wife resembles that remark.

      4. Insufficient. CarFax doesn’t include detailed info on the previous owner’s issues. I’m not looking to buy other people’s problems.

  12. Combining all my comments into one:

    This is why THE ONLY acceptible answer is getting the state out of marriage altogether. There is no compromise that is good enough.

    1. Be the change you want to see in the world, rob. Oops, too late.

      1. Ayn Rand was on Medicare! HERPA DERPA DURRRRR

        1. I was going to make a similar response with social security.

          Also ROADZ.

          1. Almost everyone pays taxes, specifically designed to cover the benefits of SS and Medicare – also ROADZ.
            It is not hypocrisy on the part of the recipients, if the entity that has made the promise of the benefits fails its due diligence to either collect enough to cover said benefits or invest to increase everyone’s contributions, so that other tax funding is needed.
            Even if the government wrote the FICA (Federal Insurance Contribution Act) in such a way that they could refuse to pay out, if they want.

    2. Hopefully, a Judge somewhere will solemnize a Civil Union and the whole issue will disappear in a puff of logic.

    3. You’ll have to consider the probate problem of inheritance tax. This is the technical problem that marriage partially solves.

      What should we do with the robc estate when you pass?

      1. It goes to the Reason Foundation – to pay for weed, squirrel traps and interns!

        1. They’re not using interns to hunt for squirrels and weed? Good grief, no wonder they’re always begging for money.

          1. The interns are too busy sucking…. oh wait, that’s a secret, never mind.

      2. umm… not tax it?

        1. Hey fuck you man, libertarianism is about ensuring the state gets its proper cut of your money when you die.

          Of course, there are non-tax probate issues as well. But since all estates with distributable assets already go to probate court, where the expressed wishes of the deceased are often trampled upon, that’s kind of already taken care of.

        2. The obvious answer is obvious.

  13. Let’s see… the marriage law of Michigan seems to date back to 1846. My legal-fu isn’t strong enough to make heads or tails of some of the sections, but it looks like Section 1 has, since 1996, been about stopping gay people from being married. Sections 14 and 15 talk about penalties for solemnizing the wrong sort of marriage, but I can’t tell how long they’ve been in place. I think 1846, but I’m not sure.

    Now, let’s throw in that Michigan had a miscegenation law from 1838 to 1883, covering the time period that (I think) these were first passed…

    Pretty sure the original intent was that yeah, even marriages that weren’t seeking state recognition were prohibited. That was the *point* of things like miscegenation laws, to stop certain marriages. Not to stop legal *benefits* to certain marriages, but to stop the marriages themselves. I mean, what were the legal benefits in 1846 anyway? Not social security, medicare, most forms of welfare, health insurance, nor alimony and (in many cases) divorce.

    (to be continued…)

    1. And it’s not like the law was never updated. It was at least updated in 1996 when they rewrote section one to ban gay people from marrying each other. And again, if such people can’t get a license, what’s the point of punishing the solemnization of a banned marriage *unless* you’re trying to stop them from getting married at all, license or not?

      So yeah. I think the history speaks to the intent clear enough. We’ll see what the state says about it though. But make no mistake, this law was almost certainly in place to ban the marriage all-together, not just the legal recognition thereof.

  14. Just because a statute uses a word like “solemnize” or “prescribe” or “elect” doesn’t mean everyone’s every use of that word means what it means in the statute. This is like the people who say doctors aren’t allowed to prescribe marijuana because they’re used to thinking of a prescription that carries certain legal privileges because of the way the word is used in statute or regul’n. So they write med mj statutes w words like “recommend” or “advise” on the assumption that there’s some magic in the word, some taboo on “prescribe” because of the use of the word in other statutes. Silly because it’s the meaning of the word that counts, not the word itself.

  15. Only a $500 fine, but they leave out the part about the SWAT team barging in, destroying everything you own, taking the smithereens and murdering anybody whose attitude does not pass inspection. That said, if you’re a JP and queers demand you perform their “marriage” ceremony, remember that legislators and governors can make speeches about bills they are about to vote on or sign, and you have the same free speech right:

    Dearly beloved, there is obviously something seriously wrong with these two queer homos, and I cannot imagine why anybody, in their right mind, would be gathered here today to witness this, but they want to get (ahem) “mawied”. So, without further ado, as Gary Gilmore said on 17 January 1977, as he stepped before a Utah firing squad, “Let’s do it.”
    Faggot number one, John, do you take Faggot number two, Richard, to be your lawfully wedded spouse?
    John: I do.
    Faggot number two, Richard, do you take Faggot number one, John, to be your lawfully wedded spouse?
    Richard: I do.
    I therefore pronounce you legally married. Now let me get out of here before I puke.

  16. The relevant statutory language is in this article. Here you go –

    “If a person authorized to solemnize marriages knowingly joins any persons in marriage contrary to the provisions of this chapter, he or she shall forfeit for each offense a sum not exceeding $500.00.”

    So the defendant must

    (a) be authorized to solemnize marriages,
    (b) “join[] any persons in marriage
    (c) do so “knowingly” AND
    (d) do so without a license for that particular marriage.

    Each element of the crime must be present. If even one element isn’t there, there’s no crime.

    So let’s look at element (b).

    The defendant must join persons in marriage in order to have even the possibility of being guilty (not to mention all the other elements).

    So it comes down to the definition of “marriage,” doesn’t it?

    Back when same-sex unions were not recognized as marriages by the state of Michigan, I don’t see how this statute could have applied. Any gay unions a minister solemnized would not be marriages, therefore the minister would not, in the eyes of the law, be joining anyone in marriage, and therefore the statute would not apply.

    Now that Michigan has to recognize gay marriage, then it has become a crime to solemnize such a union without a license.

    This wasn’t a crime before.

    Likewise with polygamous marriage, with the difference that Michigan hasn’t been required (yet) to recognize such unions.

    1. So if you look at Article I? 25 of the Michigan Constitution, you see this:

      “To secure and preserve the benefits of marriage for our society and for future generations of
      children, the union of one man and one woman in marriage shall be the only agreement recognized as a
      marriage or similar union for any purpose.”

      Of course, this has been declared unconstitutional by the courts, peace be upon them.

      But let’s do this thought experiment – suppose the Michigan Constitution still applied to this situation.

      Then, if a minister solemnized a same-sex union, then as far as the state was concerned, he would not be joining the parties in marriage, because Michigan would be constitutionally prohibited from recognizing the union as a marriage “for any purpose.” For any purpose, even the purpose of prosecuting the minister.

      Please feel free to correct me by drawing my attention to a case where a minister was prosecuted in Michigan for officiating at a same-sex union, before the state had to recognize gay marriage.

      1. but the reality remains that the Michigan Constitution is still binding law in the State of Mchigan. Obergefell is only as powerful as any state or individual will grant it. The SCOTUS only issued an OPINION it is NOT binding law… as only Congress can make law. If states like Michigan and Kentucky would assert THEIR authority over marriage then feds would eventualy have to admit defeat. After all, NOWHERE in the COnstitution is FedGov assigned any authority over marriage or family. Nor does that document prohibit such authority to the states, or the people Thus marriage remains under the purview of the people of each state as their will is expressed through their legislatures.

  17. hpw did the state ever gat “authority” over marriage anyway? It was historically a concern of the church. It is God who established marriage, and it was the covenant community that would recognise it as part of their function. I think half baked rookie lawyer could easily build a strong case based on the First Article of Ammendment’s restriction against preventing the free exercise of one’s religion. If a couple cannot even have their own minister “solemnise” their marriage, that MUST be a “pre\venting the free exercise thereof”.
    Of course, this law was not enacted by CONGRESS, so likeluy would not fall under that safeguard. States can do as they will concerning marriage.
    Hmm.. how close to the next state over is this guy’s pastorate? We ALL know if its recognised by another state as bring valid, Michigan must also recognise it as valid.

    Wish they’d do what with our concealed handgun Mother May I Cards….

    1. Marriage predates both “history” and organized “religion”.
      It most likely came about, soon after humans formed into societal groupings because it was recognized that a father-figure was needed at certain times of child rearing. While it was well known who the mother of a child was, narrowing down the other parent was next to impossible unless monogamy was maintained.
      It may have been one of the first functions of a rudimentary governmental structure to ensure that children were raised properly, and didn’t become a burden on the nascent society.

  18. Bit too late. Common law marriage was outlawed in Michigan in 1960 or so. There is no such thing as a ‘private’ marriage there anymore. The state now owns the word and the institution and it can decide to whom it will/won’t contract its bureaucratic ‘solemnizing’.

    And if religions are now discovering that there’s a 1st Amendment problem here – well why did you change your marriage vows to ‘by the authority vested in me by the state of XXX I now pronounce you A and B’. What did you think that meant? It means you are a bureaucrat now and marriage is now establishment of religion.

  19. The real question is can the State force a baker to make a cake for these ceremonies.

  20. Detroit Pastor Neil Patrick Carrick has celebrated the new year by filing a lawsuit against Michigan’s governor and attorney general based on laws that declare that it’s illegal for any person?both government clerk and private religious official?to “solemnize” a marriage that the state does not recognize.

    Change the word “solemnize” with “bless” and you have right away a very clear 1st Amendment problem with that rule.

  21. State sanctioned solemnizing

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