This is from a previous discussion. Dave is raising some good points, but I want to point out a few things and ask others to join in. First, Taylor has stopped by to say this:
I think Joel is potentiallly correct de jure. De facto, I would imagine the state is somewhat unlikely to pursue all of the fraud cases its law, as written, could establish.
However, The UMC could now have two Disciplinary bases for a charge, as the marriages it authorizes its clergy in good standing to perform are limited to those the state authorizes, too. This is why we cannot perform marriages “in the eyes of the church only.”
So the state says the minister must be authorized by the denomination to preside legally. We are not credentialed to preside at same sex marriages anywhere, which means we are breaking state law in WV if we do that there, which means even though the state authorizes same-sex marriages, we’ve broken the “state-authorized” part of the Discipline, and not just the same-sex blessing/marriage part, as well.
State marriage laws, and some municipal laws within states, can and do vary widely. Always know and follow the laws that apply where you will before you preside at any such services. If you want to risk being charged both ecclesially and civilly for the sake of principle (and I mean this with all respect), it sounds like WV may be one place you could do that. If you don’t, don’t act beyond the terms of the credentialling you actually have. And if those terms seem unacceptable, work to change them through the proper channels (General Conference action) of The UMC.
Dave has some excellent comments you can find here. This is my reply:
Dave, look what Taylor said.
And then reread the 48-2-402(a)(2). WV, my state, will only grant licenses for marriages authorized by the denomination. It doesn’t say any marriage. It clarifies: “is duly authorized to perform marriages by his or her church”
You are correct — a court may not see it this way, but this does not mean we cannot look at this and wonder if in states with carefully worded language, if certain marriages (gay or otherwise) are now acts of fraud and if people wanted to pursue it, they could.
As for the red herrings you place, you will have to demonstrate that the ME forbid interracial marriages and that the law was the same during this time.
Further, I call your attention to this:
For religious marriage celebrants, at least, it appears that the Secretary of State is responsible for enforcing this restriction on solemnization. Under state law, the Secretary of State is exclusively charged with reviewing and approving “religious representative to celebrate the rites of marriage,” and with maintaining “a central registry of persons authorized to celebrate marriages in this state.” Id. § 48-2-402; see Exh. 4–5. No religious representative may solemnize a marriage in West Virginia without an authorizing “order” from the Secretary of State. Id.; see also id. § 48-2-401 (“A religious representative who has complied with the provisions of section 2-402 . . . is authorized to celebrate the rites of marriage in any county of this state.”).
Then, read this:
Specifically page 1470 that says:
It is helpful to note that those who perform religious marriage ceremonies are not themselves either actual or apparent agents of the state. They do not, for instance, act on behalf of the state or subject to its control. Instead, they act solely on behalf of their private religious affiliations and subject to the respective dictates of each.
This site sums it up well:
a religious representative unless otherwise restricted to sign a marriage certificate in WV according to §48-2-402
At least in West Virginia, the restriction of the denomination overlays the authority of the State.
Again we have to ask if, due to State laws, if UMC ministers (because of the BoD) who perform marriages between people of the same gender are not in danger of breaking state laws — even in states where marriage equality is a reality.
Please contribute to the discussion here.