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

Abstract

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 governmental 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 relationship has implications for support and benefits. Additional questions arise when the parties to a “quasi‐marital” relationship 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's exercise of religion. 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 individuals 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 relationships 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,1 which in this case is the existence of a religious marriage.