Rethinking Religious Marriages When Done Without Any Civil Marriage: Non‐Marriage, Neo‐Marriage, Marriage, or Something Else?

• Author: Michael J. Broyde,Rachel M. Peltzer
• DOI: http://doi.org/10.1111/fcre.12532
• Date: 01 October 2020
• Published date: 01 October 2020

RETHINKING RELIGIOUS MARRIAGES WHEN DONE WITHOUT ANY

CIVIL MARRIAGE: NON-MARRIAGE, NEO-MARRIAGE, MARRIAGE,

OR SOMETHING ELSE?

Michael J. Broyde and Rachel M. Peltzer

In an era in which relationships that look like marriage, but are not civilly recognized as such, are common, states face

questions of how to regulate these “quasi-marital”relationships. Constitutional questions surround the regulation of

consensual sexual relationships. In response, many states permit these relationships to occur with minimal governmen-

tal involvement. Some states may find, based on the couple’s actions, that the individuals are common law married.

Other states will simply never recognize the parties as married. Beyond marital status, some states find that the rela-

tionship has implications for support and benefits. Additional questions arise when the parties to a “quasi-marital”rela-

tionship attempt to marry in the eyes of God, without also seeking a civil marriage. The regulation of a solely religious

marriage is fraught with First Amendment concerns, and yet, many states criminalize the solemnization of a purely

religious marriage in some fashion. How and whether these laws are enforced impact an individual’sexerciseofreli-

gion. Governmental non-regulation of other premarital sexual arrangements suggests that there is no state interest in

the regulation of a solely religious marriage.

This Article provides a foray into the law that governs solely religious marriages. It addresses the factors that motivate indi-

viduals to enter into a religious marriage without also entering into a civil marriage, discusses models of religious marriage

regulation abroad and within the United States, and provides insight into how the government treats quasi-marital relation-

ships in general. This Article advocates that states ought to treat all persons who have chosen to avoid the secular marriage

process the same. That is, the regulation of individuals who have crafted a marital relationship that is purely religious should

be consistent with the regulation of other non-marital sexual arrangements. In deciding whether a solely religious marriage

constitutes non-marriage, neo-marriage, marriage, or something else, the government should pay no attention to the man

behind the curtain,

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which in this case is the existence of a religious marriage.

Key Points for the Family Court Community:

As sexual freedoms evolve in the United States, many individuals are finding themselves in committed relationships

that are not civilly defined as “marriage.”

The existence of a religious marriage between parties in the absence of a civil marriage is increasingly common.

Despite First Amendment concerns, many states have laws that seek to regulate the religious solemnization of a

purely religious marriage.

Special regulation of a solely religious marriage ought not to occur and these relationships should be treated the same

as other non-marital sexual arrangements.

Keywords: First Amendment; Marital Benefits; Marriage Regulation; Religious Arbitration; Religious Freedom; Religious

Marriage.

I. INTRODUCTION

In an OrthodoxJewish community, the true “out-of-wedlock”birth rate is fairly low.

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Orthodox Juda-

ism is a fairly conservative faith with low rates of both teen pre-marital sexual intimacy and higher rates

of teen marriage, particularly in its more fundamentalist (Haredi) variations. But yet, with some

Corresponding: mbroyde@emory.edu

The authors thank Ashley Stern Mintz who did an excellent job editing an earlier version of this article and Albertina

Antognini and Kaiponanea T. Matsumura for their wise comments. Thank you to each member of the Roundtable on Non-

marriage and the Law which took place at the University of Arizona James E. Rogers College of Law in Tucson, Arizonain

2020 for their comments as well.

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 992–1021, doi: 10.1111/fcre.12532

© 2020 Association of Family and Conciliation Courts

regularity, governmental officials are concerned with the high “out-of-wedlock”birthrateinboththeHar-

edi and the Hasidic communities.

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The reason for this phenomenon is a dissociation between religious

marriage and civil marriage. These communities have pockets of people in them who do not register

their religious marriages with the state, and these high rates of “out-of-wedlock”child births are a

function of how the government identifies “out-of-wedlock”child births—women who are married

religiously but not civilly, yet have children are viewed as giving birth out-of-wedlock. New York

and New Jersey have no way to track who is getting religiously married, so the state assumes that

the women who are giving birth in these communities and who are not civilly married are not mar-

ried at all and are having children without the benefits of marriage . This is, presumpt ively, civilly

true. But these women are religiously married and see themselves as married. As a result, there is a

tension between what the government identifies the out-of-wedlock birth rate to be and what local

communities identify as the out-of-wedlock birth rate. This tension in identifying the out-of-

wedlock birth rate, therefore, suggests that in the United States there are religious marriages that are

entered into in the absence of a civil marriage.

While traditional notions of marriage often conflate civil marriage with religious marriage, there

is a rise in the number of people entering into religious marriages without any civil marriage. States

face unique challenges regarding the regulation of solely religious marriages. The classification of a

religious marriage without any civil marriage depends on how one understands the term marriage; a

solely religious “marriage”could be viewed as not a marriage at all, as neo-marriage, as marriage,

or as something completely different. States are free to regulate marriage, subject to a few constitu-

tional limitations. Analyzing how different areas of the law and how different states treat religious

marriages in the absence of a secularly sanctioned marriage provides insight into what this model of

marriage means in American society.

We note that the existing approaches taken by the many states result in differing treatment of a

solely religious marriage. This article proposes that the secular legal system in the United States

ought to ignore the existence of a solely religious marriage. The existence of a common law mar-

riage, in states that permit such marriages, should turn on the relationship between the parties rather

than merely the existence of a religious ceremony. Additionally, a solely religious marriage should

not be criminalized, which it surprisingly is in many jurisdictions.

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Finally, in assessing support

obligations, such as alimony or pension benefits, states ought to assess the facts of the individual

situation in the absence of a religious marriage.

This Article begins with a discussion of why there is a separation between religious marriages and civil

marriages in the United States. Part I analyzes different reasons why people may pursue solely religious

marriages. It then looks at the ways in which people govern religious marriages through arbitration. Part II

moves to a discussion of the regulation of religious marriages internationally. This Part compares different

models of marriage and what these models mean for the individuals who are regulated by them. It con-

cludes with a discussion of marriage regulation in the United States generally. Part III looks at the specific

ways in which marriage is regulated in the various different states, focusing attention on how religious

marriages are regulated in the absence of a civil marriage. Finally, Part IV discusses why governmental

treatment of solely religious marriages matters in the United States. Part IV focuses in great detail on the

basis for the termination of spousal support obligations. The Article concludes with commentary on how

states should regulate a religious marriage that is not coupled with a civil marriage.

II. SEPARATION BETWEEN RELIGIOUS MARRIAGE AND CIVIL MARRIAGE IN

THE UNITED STATES

In the United States, religious and civil marriages are treated as unique and separate. Courts

recognize the separation and distinguish between a religious marriage and a civil marriage.

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A religious marriage is not required for a civil marriage.

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Likewise, a civil marriage is not required

for a religious marriage, at least in theory.

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The legality of non-government sanctioned marriages

aside, there are many reasons why people desire to enter into marital relations that are not

Broyde and Peltzer/RETHINKING RELIGIOUS MARRIAGE 993