Performance of Marriage Ceremonies
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m28
A minister has the authority, in most states, to perform marriages.1 This authority is granted by state law. State laws vary widely in defining those clergy who are authorized to perform marriages. Some states require that the minister be ordained;2 others require that the minister be either licensed or ordained;3 and others omit any specific reference to either licensure or ordination.4
It is the state, and not the minister or religious organization, that ordinarily will decide whether a minister is in fact “ordained” or “licensed” and therefore qualified to perform marriages under a state law requiring either ordination or licensure. To illustrate, ministers receiving ordination credentials through the mail--order Universal Life Church have been denied the right to perform marriage ceremonies under state laws permitting “ordained ministers” or even “ministers” to conduct such ceremonies.5 The courts obviously are faced with a difficult task when they attempt to deny legal privileges to some ministers on the basis of principles that do not involve a judgment on the legitimacy of religious belief. The difficulty of such a task is reflected in the unsatisfactory attempts by the courts to explain the distinction between ministers who are eligible for certain legal privileges and those who are not.
In most states, it is a criminal offense for one to perform a marriage ceremony if he or she is not authorized to do so by state law. Thus, if a state law authorizes only ordained ministers to perform marriage ceremonies, an unordained minister will be criminally liable for performing a marriage. Criminal penalties for the unauthorized performance of a marriage ceremony generally include a small fine or short prison sentence.6
Many states also impose criminal penalties upon ministers for the following acts:
1. failure to maintain a record of marriage ceremonies performed
2. failure to return promptly to the proper authorities a properly completed certificate of marriage and the license to marry
3. marrying persons without a marriage license
4. marrying persons not legally capable of marrying
Misspelling a name, inserting the wrong date, or having less than the required number of witness signatures on the marriage certificate will not affect the validity of the marriage. It is generally held that a marriage will be considered valid even though the minister fails to complete and return a marriage certificate. And, a marriage will be valid even though the minister performing the ceremony was not authorized to do so, at least if the parties did not know that the minister lacked authority.7
Many states permit members of religious sects to be married according to the rites and customs of their sect, even though such ceremonies may not otherwise be consistent with state marriage laws.8 Such laws do not dispense with licensing and reporting requirements, however.
A state's right to regulate marriage and divorce is the same whether a marriage is performed in a church by a minister or in a civil ceremony by a judge. As a result, a state's divorce law can be applied to a Christian marriage performed in a church by a minister though one of the spouses maintains that the state's divorce law conflicts with his or her religious beliefs.9
For related information on this topic see the following articles:General Scope of a Minister's Authority
Officer of the Church Corporation
Clergy Authority in Property Matters
Visiting Privileges at Penal Institutions