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The return of clandestine marriage?

“It is the worst clandestine marriage when God is not invited to it. Wherefore, beforehand beg his gracious assistance.” —Thomas Fuller, The Holy State

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, a problem arose with clandestine or secret marriages, which were not witnessed by anyone (other than a priest). Such marriages were performed in England up through the 1700s. They became known as “Fleet Marriages” because they were so often performed by unscrupulous priests serving time at Fleet Prison, who would perform weddings 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 would marry secretly, consummate the marriage, and then one party — the man, let’s be honest — would deny the marriage had taken place.

Both the reading the banns of marriage and the charge 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” (1979 BCP, p. 424) stem from the same concern that gives us the double-consent formula: a desire to avoid abuse. In the case of the banns, the concern was to avoid bigamy. In the case of double consent, it was to avoid forced marriages. In both cases, the desire was to prevent the strong from imposing their will on those with less power or a lower social standing.

What does 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 Episcopalians may be asked at the next General Convention to enshrine something very much like clandestine marriage.

In its latest report, the Task Force for the Study of Marriage proposes using The Blessing of a Lifelong Relationship in 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.

The Blessing of a Lifelong Relationship would enshrine the blessing of a union that is not marriage, but that intends what marriage intends, save for the condition that it is not marriage. If the debate about same-sex marriage in the Episcopal Church in the past few decades has taught us anything, it’s that the terms of the debate hinge on what marriage is, and whether it should be expanded to include same-sex couples. If something looks like marriage, and functions like marriage, we are best off discerning whether it does in fact constitute marriage.

It is more than a little strange, when the bulk of the Episcopal Church has accepted same-sex marriage, to consider authorizing a rite that, although it claims to bless an “unconditional and lifelong” union, is predicated on the condition that the parties avoid the obligations, duties, and protections of marriage.

I recall a number of years ago that some bishops sought permission for their clergy to officiate at marriages using the prayer book, but without a civil marriage license. The stated reason then was so that couples would not be required to give up their Social Security benefits upon marrying.

Let’s be real for a moment. It’s not only the elderly who are discriminated against by government policies on marriage. Many couples postpone marriage so their children will not lose Medicaid coverage. I suppose it makes sense that we would think about the elderly, given the makeup of the Episcopal Church, but the proposed solution is not a solution at all. It does nothing to deal with the inequities of the system, but simply envisions the church as creating a liturgy to make us feel good in the midst of injustice.

My pastoral response to the two situations would be quite different. In the first, I would say something like this: “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 marriage lite. Nor would I want to officiate at a service without a marriage license.

In the second case, I would like to see some provisional authority granted to priests to officiate at weddings — again, not marriage lite — for couples in which 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 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 clergy “acting as agents of the state.” But I think this understanding has things exactly backward.

The state doesn’t recognize a marriage because I act as an agent of the state. The state recognizes that marriage is an institution prior to and independent of the state, but that must be managed by the state because the law is the way our community has provided for us to work together.

The state recognizes that traditional marriage fits the minimum definition of what the state considers marriage to be. It’s not that priests and rabbis or imams thereby become agents of the state. Rather, 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, “By the power invested in me by the state of Tennessee, I now pronounce you man and wife.” I instead say, with the Book of Common Prayer, “Now 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, p. 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, including any children. Blessing marriages without civil marriage licenses, and thereby creating legally invisible unions, means that the state doesn’t easily know how to adjudicate between couples when their unions dissolve or when one party abandons the other. 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. If we were a sectarian tradition that claimed unfettered loyalty from our membership, maybe it would have a shot. 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. If some people enter 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.

Our church has always worked in and through culture. We cannot so easily shirk our responsibilities now. Rather than creating liturgies for these situations, perhaps we should be drafting legislation that identifies an injustice and authorizes the Episcopal Public Policy Network to lobby for corrective legislation.

We should teach about these issues in our parishes, and get 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 receiving the support they need, whatever their age, stage of life, or economic or immigration status.

I think that’s a much better idea than reviving legally clandestine unions.


  1. I agree that this proposal is not an idea solution, but it’s a similar situation that slaves had to deal with when their marriages were not recognized because of an unjust system . Yes we need to fix the system but we need to offer ecclesiastical refill until the system is fixed and we need to remember that the bible does not spell out any one ceremony for marriage. So maybe flexibility is better in this situation

    • I think your parallel might work better in regard to situation #2, that of undocumented immigrants, primarily because they have no say in the laws of our country and marriage is arguably a natural human right, which they are being deprived of by laws in which they have no say.

      In contrast, any citizen of this country has the ability to engage in our system, and whether just or unjust, has a means to fight injustice. I’m not sure it’s ethical to help people game the system under whose laws and authority we are all supposed to abide, a system they have legitimate means to change.

      And neither of these situation addresses the need for creating a union that is neither fish nor fowl, as opposed to granting a temporary authorization to solemnize marriage without a marriage license.

      Indeed, the *only* reason to create a distinctly new category is not to protect the elderly who would lose their social security, nor to protect undocumented immigrants (both of whom would be protected on those fronts from the government by their unions not being legally recognized) but to protect inheritance and to keep couples from having hard conversations with their children. Since cohabitation, even without a marriage license creates a legally difficult situation to extricate oneself and one’s property from (actually more complex than divorce), people who *actually* wanted to achieve these ends are better off talking with a family law attorney and setting up trusts etc. so it’s doubtful the effort would provide what is desired on its own merits.

      But finally, there is the sticky topic of whether or not we believe these unions are going to be of sufficient virtue, surpassing that of marriage, so that people will not require the legal protections provided by the state if their unions fail.


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