A version of this post was also posted at The Living Church’s Covenant Blog.

An initial “C” in a medieval manuscript discussing clandestine marriage. The British Library.

The seventeenth century Anglican Priest and historian Thomas Fuller once wrote, “It is the worst clandestine marriage when God is not invited to it. Wherefore, beforehand beg his gracious assistance“ (Fuller, The Holy State, 172 ). While Fuller called those marriages that are not undertaken before God to be the worst form of clandestine marriage, his comment may strike many modern readers as odd, given that we are so far removed from the question of clandestine marriages. But it was not always so.

Indeed, at various points in the medieval period, the Church and society struggled with the question of what constituted marriage. The two main schools of thought were consent—favored by many scholastic theologians—and consummation, favored by many laity. Because the Church emphasized consent, and—at least in the West—upheld the fact that the couple are themselves the ministers of the marriage, there arose a problem with what were called “clandestine” or secret marriages. Marriages that were not witnessed by anyone (other than a priest). Indeed, such marriages were so problematic, and continued to be performed in England up through the 1700s that they became known as “Fleet Marriages” because they were so often performed by unscrupulous priests serving time at Fleet Prison, who would perform a wedding for the right price.

While there were times when clandestine marriages were pursued for reasons that a conscientious observer might have found ethical, they were a source of abuse wherein people could be married secretly, have sex, and then one party—the man, let’s be honest—could then deny the marriage had ever taken place after having taken advantage of a woman, often of a lower social or economic class.

While the reading of the banns of marriage—not often done in the United States at all, but still, I understand, done occasionally in England—may seem no more than a quaint custom, and the charge in our wedding rite that “if any of you can show just cause why they may not lawfully be married, speak now; or else for ever hold your peace” (BCP 424) may be more confusing than not (mostly because clergy don’t explain it), they stem from the same concern that gives us our double consent formula: a desire to avoid abuse. In the case of the banns, the concern was to avoid bigamy. In the case of the double consent, it was to avoid forced marriages. In both cases, the desire was to avoid the strong imposing their will on those with less power or a lower social standing.

What does any of this have to do with us today, in our culture of falling marriage rates, widespread cohabitation, and changing sexual mores? I submit it may be of interest because we in the Episcopal Church may have an opportunity to at General Convention next year to approve a supplemental liturgy that enshrines something very much like Clandestine Marriage.

The Task Force for the Study of Marriage recently offered its report from its last meeting. In it, they discuss all hot button issues related to a gender neutral marriage rite, whether or not to amend the Book of Common Prayer’s wedding service prior to a full revision of the Prayer Book etc. In addition, however, they indicate they will be putting forward a resolution to authorize two supplemental liturgical blessing rites. One, The Witnessing and Blessing of a Lifelong Covenant, is intended for use in dioceses and parishes of The Episcopal Church that exist in places where the legal jurisdiction does not have legal same-sex marriage. But it is the second of these proposed supplemental rites to which i want to turn our attention, “The Blessing of a Lifelong Relationship.” It is this rite that I believe entails a revival of Clandestine Marriage, and with it, possible abuses.

The Task force states in their report that The Blessing of a Lifelong Relationship is proposed for use under two circumstances:

  • By mature couples who seek to form and formalize a special relationship with one another that is unconditional and lifelong, but is nevertheless something different than a marriage in that it does not include the merging of property, finances, or other civil legal encumbrances, in order to protect against personal and familial hardship.
  • By couples for whom the requirement to furnish identification to obtain a marriage license could result in civil or criminal legal penalties, including deportation, because of their immigration status.

They state that the use of both supplemental rites will contain conditions for use that reflect the conditions for use of the marriage rites, by which I assume they mean that one party must be a baptized Christian. I don’t think they could mean that the couple would need to sign the Declaration of Intention, since the very design the second supplemental rite would negate what is intended by the declaration.

I will leave it to others to hash out those liturgies referred to in the report of the task force that have already received, and will doubtless continue to receive much attention. My purpose here is to sound what I believe to be a necessary alarm bell about this supplemental liturgy. I do so for a few reasons:

First, it would enshrine in our liturgy the blessing of a union that is not marriage, but which nevertheless intends what marriage intends, save for the condition that it is not marriage. If our debate about same-sex marriage in the Episcopal Church over the past few decades has taught us anything, it’s that the terms of the debate hinge on what marriage is, and whether it can and should rightly be expanded to include same-sex couples.1 Those who have argued for some other union for same-sex couples have always been a minority, and in the terms of the unfolding life of the Episcopal Church, I think even those who hold that position would have to admit that the debate has passed them by. In other words, if something looks like marriage, and functions like marriage, we are best off conceiving of it and discerning it in terms of whether or not it does in fact constitute marriage.

It is more than a little strange that at a time when the bulk of the Episcopal Church has accepted same-sex marriage, we would consider authorizing a rite that, even though it claims to be blessing a union that is “unconditional and lifelong” is precisely predicated on the condition that the couple avoid the obligations and duties of marriage, and likewise are deprived of the legal protections due them within their relationship. The very justification from the task force is self-refuting: claiming something as unconditional while starting the precise conditions. The authorization of such a rite is a revival of clandestine marriage precisely because it is a revival of a relationship that looks like marriage that is invisible to the community, embodied by the state, when the state is the only entity that can provide appropriate protection to the parties of the relationship.

It’s difficult to know precisely what sort of situation is envisioned by the Task Force when they write that about avoiding the “merging of property, finances, or other civil legal encumbrances, in order to protect against personal and familial hardship.” I recall a number of years ago that there were some bishops who sought permission to have their clergy officiate at marriages using the BCP rite, but without a civil marriage license. The stated reason then was so that couples would not be required to give up their Social Security upon marrying.

Honestly, discussing whether or not Social Security requirements might not actually be as burdensome as some think, or pointing out that adults can perfectly well protect their assets legally when they decide to wed without avoiding marriage, might be begging the question. Assumed in a discussion that does that direction is this: It must be ok for the church to salve peoples consciences as they seek to circumvent laws intended to apply to people living in particular relationships. In other words, I would question whether the prior assumptions that make such a rite conceivable are even ethical for Christians.

That question of ethics is one of communal or social ethics. On the side of personal ethics and morality: should the church bless something that is not marriage, but which all parties conceive on the personal level to be like marriage, avoiding only the social cost, which could therefore entail a sexual relationship outside the bounds of marriage.

Let’s be real: It’s not only the elderly who are discriminated against by our governmental policies when it comes to marriage. Look around your own family or community and I bet you can find examples of couples who have postponed marriage so that their children wouldn’t lose medicaid (or whatever local equivalent) coverage. I suppose it makes sense that we would be thinking about the elderly, given the makeup of The Episcopal Church, but this solution is not a solution at all. To use the meme inspired parlance of our day, this is weak sauce.

If you sense some sarcasm, it’s because this proposal does nothing to deal with the inequities of the system, and instead doing what comes easy to Episcopalians and crafting a liturgy to make us feel good in the midst of injustice. At least, we must think it’s an injustice, or else it really is completely unethical to offer such a liturgy.

Which brings me to the second scenario envisioned: that of undocumented immigrants who are uncomfortable—for obvious reasons—with applying for marriage licenses. These two scenarios really are an odd pairing. In the first, pains are taken to say that the couple does not want marriage. In the second scenario, I imagine the couples would say unequivocally  that they do. Unless one assumes, as I do, that they actually do want marriage in both cases, but are avoiding real or perceived penalties.

My pastoral response to the two situation would be quite different. In the one, I’d say something like “it’s a hard decision whether to marry, and whether to bear the cost of that. I’d be happy to talk with you through the process, and recommend attorneys who could help you arrange things so that your families are reassured.” But I would not offer them “marriage-lite.” Nor would I want to officiate at a service for them without a marriage license.

In the later case, I would like to see some provisional authority granted to priests to officiate at weddings—again, not marriage-lite—for couples where one party is at risk of deportation. But I think we really should only see this as provisional and it should chafe to the point that we actively work to see that undocumented immigrants can legally marry. Why would I say this?

I understand that it has become popular in some circles to argue that marriage in the church and marriage in the eyes of the state should be divorced from one another. Often this is accompanied with a criticism of the clergy “acting as agents of the state.” But I think this understanding has things exactly backwards.

The state doesn’t recognize a marriage I officiate because I’m an agent of the state (arguably, they recognize it because a license fee was paid, but let’s put that to the side for the moment). They recognize it because the State recognizes that marriage is an institution prior to and independent of the state, but which must nevertheless be managed by the state because the law is nothing if not the way our community has provided for us to work together.

Because marriage is therefore prior to the state (as is the family unit), the state recognizes that the traditional marriages as envisioned and contracted in numerous religious communities, regardless of their particularity, fits the minimum definition of what the state considers marriage to be, and it therefore recognizes them. It’s not that priests and rabbis or imams or brahmans thereby become agents of the state, it’s that the state recognizes these communities as constituent bodies within a broader society, and marriage as a constitutive element of society as a whole. This is why I am thankful that I have never said, and will never say “by the power invested in me by the state of _____, I now pronounce you man and wife.” I will instead say, with the Book of Common Prayer “No that N. and N. have given themselves to each other by solemn vows, with the joining of hands and the giving and receiving of a ring, I pronounce that they are husband and wife, in the Name of the Father, and of the Son, and of the Holy Spirit. Those whom God has joined together let no one put asunder” (BCP 428).

All of that said, the role of the state is important and significant: the state ensures the rights of all parties in the marriage, both each member of the couple, and any children they have. Blessing marriages without civil marriage licenses, and thereby creating legally invisible unions, means that the state doesn’t easily know how to adjudicate between the couple when their union dissolves, when one party abandons the other, etc. This is especially true when there is common property. Marriage—civil, legal marriage—is a protection against the abuse of the less powerful by the more powerful. In heterosexual marriage, the less powerful are often women and children. Unless we are going to revive ecclesiastical courts, I don’t see how we can responsibly bless unions without the legal element.

If we had common law marriage in the United States, perhaps it could work.2 If we were a sectarian tradition that claimed unfettered loyalty from our membership, maybe it wold have a shot (but who among us would really want that?). But neither of those is a reality. The states are all too diverse in their marriage laws and less than a handful have anything like Common Law marriage. And if we have some people entering these relationships with the express desire not to be married, then even the laws in places like North Carolina that provide for marriage by reputation wouldn’t be a protection.

We are a church that has worked in and through culture. We cannot so easily shirk our responsibilities now. Rather than crafting liturgies for these situations, perhaps we should be crafting legislation that calls out the injustice to which we really ought to respond, and put the Episcopal Public Policy office to work lobbying for specific legislation.

Maybe, even more importantly, we should teach about these issues in our parishes, and get Episcopalians and other Christians involved in challenging systemic injustices that harm people in our society, that militate against the formation of stable families, and that prevent people from getting the support they need, whatever their age, stage of life, economic or immigration status.

I think that’s a much better idea than reviving legally clandestine unions. If we really believe these to be issues of injustice, we are obligated to challenge the status quo. If it’s just a matter of being inconvenienced, then perhaps what we really want is a marriage of convenience, even if we call it a “Blessing of a Lifelong Relationship.”

  1. There was a good back and forth about this in The Living Church before General Convention 2015, between my former Professor Dr. Bill Carroll, and my bishop, John Bauerschmidt. I haven’t been able to find the exchange online, but if and when I do, I will link to it here. []
  2. I’m actually in favor of restoring a form of Common Law Marriage, much like I read described several years ago in a reform of marriage law in British Columbia. The one thing–considered radical by some, I’m sure–that I would add, would be to include same-sex couples if there were children present. Since part of the point is to encourage stability and to protect the less-powerful parties in relationships/families, it makes sense to include them, regardless of one’s theological perspective on same-sex marriage. See: goo.gl/3mTBa5 []