NoSSN - Licenses, Caesar and Marriage

Licenses, Caesar and Marriage
January 5, 2001

Licenses, Caesar and Marriage

Hypothetical Question:

You own 200 acres of land. You decide you would like to allow your 12-year-old son to drive your car around on your land. He takes the car, a new BMW, and drives all over your property.

Is it legal?

Your son has no license. Yes, it’s legal. It’s your property. The State has no jurisdiction on your property.

Now, if you let him take your car out on public property, that would be illegal. It is against the law to drive a car on public roads if you do not have a license.

What is the definition of a license?

Black's Law Dictionary, Sixth Edition, page 919; License. The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, a tort, or otherwise not allowable

Now this makes perfect sense. The State has the authority over the public ways. They own them, so to speak. They may require a license for citizens to drive on those public roads. However, they cannot require a license to drive on your own property.

Everyone knows we have the seperation of Church and State. The State has no jurisdiction over what goes on in a church. The State can't tell a church how often to have communion or whether to use bread or matza crackers or syrian. The church could serve peanut butter on the bread and beer instead of wine. The State couldn't say a word about it.

Another hypothetical question:

There are three couples that would like to get married. Couple number one goes to Vermont, gets a marriage license, goes to the Justice of the peace and gets married. Couple number two stay here in Massachusetts, get a marriage license, go to the Justice of the Peace and get married. Couple number three do not get a marriage license. They go to the Pastor of their church and get married.

Who is really married?

Couple number one is actually two gay men. Couple number two certainly did things legally. Who is actually married?

Is it illegal to marry?

No, of course not. You may certainly take your fiancé to a minister and get married. That is your right. The State has no authority over a church and a marriage is a religeous sacrement like communion. It is not a State institution.

Do you need a license?

Many people need licenses or authorization from the State for certain trades or occupations or practices. For example, you cannot tell people you are a doctor and start performing surgery just because you think you can do it right. The same thing applies for dentists and lawyers and plumbers and electricians. There are many issues at stake in these occupations. None of which apply to marriage.

What does the law say?

Here in Massachusetts we have the MGL or Massachusetts General Laws.

Chapter 207: Section 19. Notice of intent to marry; situs; time; fees.

Section 19. Persons intending to be joined in marriage in the commonwealth shall, not less than three days before their marriage, jointly cause notice of their intention to be filed in the office of the clerk or registrar of any city or town in the commonwealth, and pay the fee provided by clause (42) of section thirty-four of chapter two hundred and sixty-two.

Curiously, there is no penalty for violating this section. Maybe it’s just a suggestion.

There is, however, a penalty for the person who solemnizes a marriage without a marriage license.

Chapter 207: Section 49. Joining persons in marriage without certificate.

Section 49. Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not complied with the laws relative to procuring certificates of notice of intention of marriage shall be punished by a fine of not more than five hundred dollars.

Of course this requires that the person who solemnizes the marriage be duly authorized. Where does this authorization come from? It comes from the Commonwealth of Massachusetts. Does this mean that the Commonwealth of Massachusetts is a competent authority on marriage? I wouldn’t think so. God institutes marriage. It is a sacrament. I fail to see how this grants the State any authority in marriage.

Getting back to our three couples in our hypothetical question. Couple number one certainly is married under the authority of the State of Vermont. Sure, it’s legal under Vermont law. That doesn’t say a lot about Vermont. Couple number two is married in the same way and is just as married as couple number one. Are they really married?

You might also wonder if a couple, married without a marriage license would be considered married in the eyes of the law. Certainly witnesses would be able to vouch for the marriage. Videotape and photographs would also confirm it. Let’s also look at what the law says.

Chapter 207: Section 45. Record of marriage.

Section 45. The record of a marriage made and kept as provided by law by the person by whom the marriage was solemnized, or by the clerk or registrar, or a copy thereof duly certified, shall be prima facie evidence of such marriage.

So the person who solemnized the marriage must keep a record of it. That shall be prima facie evidence.

Chapter 207: Section 47. Admissions; repute; cohabitation.

Section 47. Marriage may be proved by evidence of an admission thereof by an adverse party, by evidence of general repute or of cohabitation of the parties as married persons, or of any other fact from which it may be inferred.

This next one kind of surprised me.

Chapter 207: Section 42. Irregular solemnization; validity of marriage.

Section 42. A marriage solemnized by a person professing to have the authority to solemnize marriages under section thirty-eight or thirty-nine shall not be void, nor shall the validity thereof be in any way affected by want of authority in such person or society, or by an omission or by informality in the manner of filing the notice of intention, if the marriage is in other respects lawful and is consummated with a full belief of either of the persons so married that they have been lawfully married.

That makes sense. If you believe the person can perform a marriage and solemnize it, the State won’t stand in the way. That’s awfully nice of them. I suppose you could even get married by a manager of a convenience store as long as they tell you they have the authority and you believe them. This of course is only under State Law. It has nothing to do with reality in this case.

So there is no reason why a couple cannot get married by a minister that is not duly authorized by the State. And they can do so without a marriage license.

Yet, churches will require a marriage license before performing a wedding ceremony.

I have one question left. Does the church serve Caesar?

Couple number three did not get a marriage license. They did not get permission from the competent authority, the Commonwealth of Massachusetts. They were the only couple to get married in a church. A church that does not serve Caesar.

"The income tax punishes success. At the same time, the welfare system rewards failure. This is a stupid way to run a country!" -

David Bryant

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