The Role of the Civil Magistrate with Regard to Marriage

With the rapid destruction of the institution of marriage in recent times many well-intentioned people have begun to question whether the civil government ought to have any say in the institution to begin with. The arguments usually boil down to the idea that marriage is an institution of the family, or perhaps of the church, and that the civil magistrate has little to no jurisdiction in marriage. Should the government issue marriage licenses? What ought to be the role of the civil magistrate with regard to the institution of marriage? Should marriage be privatized? We will answer these things according to the light of nature, biblically, and confessionally and we will see that marriage is a divine institution of public interest and foundational to society as well as how the civil government is to enforce the 7th commandment.

Marriage is a Divine Institution

Marriage is primarily a divine institution and a creation ordinance (Gen. 2:18-25) that exists structurally prior to civil society since the family is the fundamental building block of society. Adam and Eve were married before anyone else populated the earth and marriage can exist in a context devoid of civil society, such as on a desert island. The essence of marriage is a voluntary covenant between one man and one woman that ought to be entered into solemnly, in the fear of God, according to His Law, and in the presence of witnesses. However, marriage is for all mankind and is thus legitimate among non-Christians, even if the covenant was not initially made in the presence of witnesses but is currently being witnessed and the parties held accountable to one another. Although a situation may arise where, upon discovery of a secret marriage, it would be prudent to have a public ceremony and exchange of vows if the circumstances are such that the community does not regard it as a lawful marriage.

Marriage is of Public Interest

While the essence of marriage is its divine institution, it is also a public action and a civil contract.

Marriage is kind of public action, the well or ill ordering thereof much tendeth to the good or hurt of family, Church, and Commonwealth.  For by marriage families are erected, and Church and Commonwealth increased and continued.

William Gouge, Of Domesticall Duties, Second Treatise, Part 1, Section 19.

The Westminster Directory for Public Worship, under The Solemnization of Marriage, states marriage is not a sacrament “nor peculiar to the church of God, but common to mankind, and of publick interest in every commonwealth…” and in keeping with centuries old Christian common law tradition, pronounces that the intent to marry ought to be published three weeks before the wedding in order that anyone in the commonwealth can raise impediments to the marriage on legal grounds (ie. if one party is already married, the parties fall within the prohibited degrees of consanguinity or affinity, lack of consent, etc.):

Before the solemnizing of marriage between any persons, the purpose of marriage shall be published by the minister three several sabbath-days, in the congregation, at the place or places of their most usual and constant abode, respectively. And of this publication the minister who is to join them in marriage shall have sufficient testimony, before he proceed to solemnize the marriage.

Marriage is a public relationship requiring oaths and witnesses (Gen. 24; 29:22; “before a competent number of credible witnessesDPW; vows are “publicly ascertainedBCP) and much harm can be done when a marriage is kept secret (Gen. 12:11-20; 20:1-2; 26:7, 10).

The wedding of Boaz and Ruth was publicly solemnized at the gate of Bethlehem, in the presence of “ten men of the elders of the city” (Ruth 4:2).¹

And Boaz said unto the elders, and unto all the people, Ye are witnesses this day, that…Ruth the Moabitess…have I purchased to be my wife…And all the people that were in the gate, and the elders, said, We are witnessesSo Boaz took Ruth, and she was his wife…” (Ruth 4:9-11, 13).

¹ Among the Jews, ten men are required to attest certain acts, such as a marriage or the granting of a bill of divorce (Deut. 22:15; 25:7; Ruth 4:2-13).

H.B. Clark, Biblical Law, pg. 130.

Additionally, the confession refers to the magistrate as having the authority to remedy “wilful desertion,” as William Gouge explains:

. . .the matter [of desertion] being heard and adjudged by the Magistrate, the marriage bond may be broken, and liberty given to the party forsaken to marry another.

Of Domesticall Duties, Second Treatise, Part 2, Section 3.

Matters of marriage and divorce are not be be left up to an individual’s will and discretion, but must be handled in “a public and orderly course of proceeding” (WCF 24.6). Only the civil magistrate has the jurisdiction to order such proceedings in a standard way:

The violation of the marriage vow only invests the injured party with a right to demand the dissolution of it by the competent authority; and if he chooses to exercise that right, the divorce must be effected “by a public and orderly course of proceeding.”

Robert Shaw, An Exposition of the Westminster Confession of Faith

A.A. Hodge, in his commentary on the Westminster Confession’s chapter on marriage explains that marriage is not just a religious institution, but is also a civil institution:

Marriage is a religious as well as a civil contract. No State has any right to change the law of marriage, or the conditions upon which it may be lawfully constituted or dissolved, as these have been ordained by God. Neither has any man or woman a right to contract any relation different in any respect, as to its character or duration, from that which God has ordained as marriage. Hence marriage is a human contract under the limits and sanctions of a divine constitution, and the parties contracting pledge their vows of truth and constancy to God as well as to each other and to society.

But it is also a civil contract, because every State is bound to protect the foundations upon which social order reposes, and every marriage involves many obvious civil obligations and leads to many civil consequences touching property, the custody of children, etc. The State must therefore define the nature and civil effects of marriage, and prescribe conditions upon which and modes in which it shall be publicly acknowledged and ratified or dissolved. It is of the highest importance that the laws of the State do not contravene the laws of God upon this subject, but be made in all respects to conform to them. . . The law of the land is to be obeyed for conscience sake whenever it does not contravene the higher law of God. When it plainly does so, then Christian men and church sessions are to act themselves and to treat others just as if the ungodly human enactment had no existence, and then take the consequences.

A.A. Hodge, The Westminster Confession: A Commentary

Hodge goes on to state that the civil magistrate is the “competent authority” and has the jurisdiction to grant divorces:

. . .the only causes upon which any civil authority can dissolve the union of those whom God has joined together are (a.) adultery, (b.) willful, causeless, and incurable desertion.
. . .
And if they [the married parties] do demand the dissolution, they are not left to their own discretion in the case, but they must seek for the vindication of their rights at the hands of the public authorities and according to the law of the land.

Ibid.

This does not mean that the civil magistrate cannot err, and if he does then it is the obligation of the people and of the Church to disregard the civil judgement and to treat the situation biblically:

The civil law, however, has no authority to grant divorces upon any other grounds than those above defined as allowed by the law of God. Whenever they do so, as is constantly done in fact, the civil authorities put themselves into direct conflict with the law of God in the case. Hence all Christians and church courts are bound in such cases to disregard the judgment of the civil authority, and to regard and treat such unlawful divorces as null and void. And if the parties to a marriage unrighteously dissolved marry again, they are to be regarded and treated by those who fear God as living in those new marriages in the sin of adultery. Matt. xix. 8, 9; Acts iv. 19; v. 29.

Ibid.

Historically there has always been a civil and legal component to marriage due to its being a creation ordinance and the family being the fundamental unit of society.

In most civilized nations [marriage] is a contract regulated by law.¹ But it is more than a contract, for it gives the parties a new status and makes of them a new community in which the state is interested. It exists as a legal institution among all peoples who have advanced beyond a condition of savagery.

“From time immemorial marriage has been, in every civilized country, recognized as the foundation of civilization and of the social system. Neither one of the parties to the marriage can thereafter commit a breach of any of the obligations or duties assumed without a violation of conscience as well as of the law.”

¹ Reynolds v United States (1878) 98 US 145, 25 L. ed 244, 250 (Waite, CJ) saying that “Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built; and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”

H.B. Clark, Biblical Law, pg. 126.

Over time, as marriage became twisted into a sacrament by the Roman Catholic Church, canon law increasingly infringed on civil magistrates, making them subservient to the Church in many cases, having to merely enforce the decisions of the Church. The Protestant Reformation recovered the biblical understanding of marriage as a natural ordinance, ditching the sacramental inventions of the papists, and sparked the overturning of Roman Catholic canon law. John Calvin’s theology of marriage and social ethics laid the foundation for the Marriage Ordinance of Geneva in 1545, which enacted, among other things, “the dual requirements of state registration and church consecration to constitute marriage” as well as “the mandatory publication of banns [ie. the intent to marry] by both magistrates and ministers” in order to enforce the 7th commandment by creating an opportunity for bringing forth legal impediments to the marriage (John Witte, Between Sacrament and Contract: Marriage as a Covenant in John Calvin’s Geneva, Calvin Theological Journal, Vol. 32, pp. 9-75, 1998).

Another point of contention with the Roman Catholic Church was in that they held that minors could contract a marriage without their parent’s consent. Protestant theologians railed against this idea and wrote to prove naturally, theologically, and judicially that parental consent was necessary, especially if the children were still underage and constituted under parental authority (not legally independent of parents, yet physically and mentally mature enough to be eligible for marriage). Francis Turretin’s 7th argument for parental authority in this situation is an appeal to centuries of civil laws as well as even some older “popish canonists.”

The civil laws written with the highest agreement both by ancient lawyers and by the emperors are too well known to be ignored, too clear to be obscured, too sacred to be rightly abolished.

Institutes of Elenctic Theology, vol. 2, q. xvi, pg. 110

He cites Justinian the Great’s Corpus Juris Civilis or Body of Civil Laws (a compendium of decrees and statutes of the Roman Empire from 534 AD, when it was written, reaching back several hundred years), proving that the civil government has historically and ought to continue to protect the right of parental consent over their children’s marriages. [In addition to Justinian, Institutes, 1.10 ‘De Nuptiis’; Digesta 23.2.2 ‘De Ritue Nuptiarum’; and 23.2.9 cited by Turretin, the entirety of Book V contains laws regarding marriages, betrothals, spousal property and gifts between spouses, legitimization of children, prohibition against concubines, as well as unlawful sexual relationships.]

Enforcement of the 7th Commandment

In order to understand what the civil government’s duties are with respect to marriage, we must distinguish between “in” and “with regard to.” After explaining how the civil government has authority and obligations with regard to the Church concerning the first table of the law in forbidding false worship and false religion, Wilhelmus à Brakel proves his point that “there is a significant difference between ‘in’ and ‘with regard to’” by relating this magisterial authority to that which is with regard to marriage and households:

A civil government has authority with regard to marriage, but no authority in the marriage; with regard to a household, but not within the household.

The Christian’s Reasonable Service, Vol. 2, pg. 180.

Just as the civil government has no authority in the Church, such as to mingle in her affairs or administer the sacraments, but does have the authority to prohibit false religion, so also does the civil government have no authority in marriage, such as “prohibiting of lawful, and dispensing with unlawful marriages; allowing, tolerating, keeping of stews [ie. brothels]” (WLC 139) etc., but does have the authority to prohibit false marriages (adulterous, non-consensual, incestuous, sodomite, polygamous, etc.).

Notice as well from à Brakel that he assumes that the civil government is relating to people as families and households, rather than as individuals – a significant presupposition indeed!

Marriage is a creation ordinance (Gen. 2:18-25) that is common to all men, not just Christians. Pagan magistrates ought to enforce and protect marriage the same way that Christian magistrates ought to. Since marriage is a natural institution that is the fundamental unit of society, it is the civil government’s job to ensure that people meet the biblical requirements for marriage (both people are of age and ability to consent (Gen. 24:57-58; 1 Cor. 7:36-38), they are not within the forbidden degrees of consanguinity or affinity (Lev. 18), that the parties are both free to marry, ie. not currently married (Matt. 19:5-6), etc.), and that unlawful divorces are not taking place (Matt. 5:31-32). It is in the best interest, and the duty, of the magistrate to ensure that such prerequisites are met beforehand and to annul the betrothal in the case of deception (WCF 24:5).

While the concept of a marriage “license” may be an uncomfortable term and evoke the idea of an ungodly government giving permission for people to get married (including the fact that licenses were misused in the past to prevent miscegenation), such licensing can be used properly if it refers to the state’s verification that a couple meets the biblical requirements for marriage. However, in the case of providential hindrance or elopement (which ought to be discouraged, but still a legitimate marriage), marriages can and should be registered with the Church and the civil government afterwards because it is the government’s job to enforce and protect marriage (unlawful sexual relationships such as sodomy, incest, bigamy, etc. would likely be kept secret anyhow and would have to be proved in court by two or three witnesses). For instance, even today the state of Texas has a Declaration of Informal Marriage form which requires that the marriage is consensual, public, and consummated through cohabiting, and such a procedure of documenting marriages after the fact could be available in a covenanted Christian nation, even if irregular.

The civil government must have a record of marriages or else it cannot enforce the 7th commandment in any way. One cannot believe that the magistrate should forbid unlawful divorce, adultery, incest, sodomy, bigamy, etc. if he does not have a record of whom is married to whom. Additionally, even without the heaps of totalitarian laws that we have today, legitimate laws regarding property rights, coverture, children, adoption, inheritance, taxation, next-of-kin status, spousal medical decisions, husband and wife testimonial privilege in court cases, etc. would be very difficult to protect and manage without marriage records and the government would have to relate to people as individuals rather than as families and to children without regard to their parents. A.A. Hodge’s father, Charles Hodge, explains:

[Marriage] is so implicated in the social and civil relations of men that it of necessity comes under the cognizance of the state. It is therefore a civil institution. (1.) In so far as it is, and must be, recognized and enforced by the state. (2.) It imposes civil obligations which the state has the right to enforce. The husband is bound to sustain his wife, for example, and he is constrained by the civil law to the performance of this duty. (3.) Marriage also involves, on both sides, rights to property; and the claims of children born in wedlock to the property of their parents. All these questions concerning property fall legitimately under the control of the civil law. In many countries not only property, but rank, title, and political prerogatives are implicated with the question of marriage. (4.) It belongs to the state, therefore, as the guardian of these rights, to determine what marriages are lawful and what unlawful; how the contract is to be solemnized and authenticated; and what shall be its legal consequences. All these laws Christians are bound to obey, so far as obedience to them is consistent with a good conscience.

The legitimate power of the state in all these matters is limited by the revealed will of God. It can make nothing an impediment to marriage which the Scriptures do not declare to be a bar to that union. It can make nothing a ground of dissolving the marriage contract which the Bible does not make a valid ground of divorce. . . It is a violation of the principles of civil and religious liberty for the state to make its will paramount to the will of God.

Systematic Theology, part 3, chapter 19.

JG Vos, writing during the paradigm shift from biblical requirements for divorce to “no fault divorce” admonishes that:

Civil laws should be brought into harmony with the law of God on the subject of divorce; the many unscriptural grounds on which divorces are granted, such as “incompatibility,” “mental cruelty,” etc., should be eliminated. Some of them may be justifiable as grounds for judicial separation, but not as grounds for absolute divorce with the right of remarriage. Christian people should seek to have civil laws brought into harmony with the requirements of God’s law on this subject.

J.G. Vos, commentary on WLC questions 137-139, pg 373.

In summary, we have seen that the civil government does have a legitimate role with regard to marriage and that privatized marriage would not only result in lawless anarchy, it would also not be feasible for the proper ordering of society. We saw that marriage is a creation ordinance common to all men and that the family is the fundamental unit of society. We examined the duty of the magistrate to enforce the 7th commandment and to countenance and support the family, and when it fails to do so, where it conflicts with God’s Law, it is null and void:

Because marriage is in some of its aspects a civil institution, to be regulated within certain limits, by the civil law, men have treated it as though it were a mere business engagement. They ignore its character as a divine institution, regulated and controlled by divine laws. Civil legislatures should remember that they can no more annul the laws of God than the laws of nature. If they pronounce those not to be married who, by the divine law, are married; or if they separate those whom God hath joined together, their laws are absolute nullities at the bar of conscience and in the sight of God.

Charles Hodge, Systematic Theology, part 3, chapter 19.

marriage_certificate

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