2. THE RELATIONSHIP OF LEGAL MARRIAGE TO THE RELIGIOUS CEREMONY: HISTORICAL BACKGROUND

Originally marriage was a matter of personal contract: Among the Romans, marriage was not a matter of public legal rules; it was established and carried out by contract between families.

Catholicism converted marriage into a sacrament: Many commentators suggest that the Christian idea of an officially sanctioned marriage derived ultimately from an ancient Judaic notion that sex should be confined to marriage. To define and also to enf orce sanctions against the sin of adultery, the church first had to determine that the accused married person was in fact married.

The response of Catholicism was to ritualize marriage by converting it into a sacrament. Derived from the Latin root meaning "sacred" (L. sacer), in ancient Rome a sacrament (L. sacramenium) originally was a military oath of allegiance tak en by every Roman soldier, pledging him to obey his commander and not to desert his standard. As adopted by Catholicism, the religious rite of marriage was, and remains, one of seven "sacraments" held to have been ordained by Jesus (the other Catholic sa craments being baptism, confirmation, the Eucharist, penance, extreme unction, and holy orders).

Marriage subsequently was incorporated as a matter of public law: Not until the Middle Ages, when much church usage was codified as canon law, did marriage, as a legal status, become part of Western legal codes. Today, in European and American legal s ystems, marriage is predominantly a matter of public family law, not the law of individual contracts. Family law dictates whom one can marry and sets forth minimum ages for marriage. It governs divorce, custody of children, and the property and support r elationships of married parties.

The Reformation negated marriage as a sacrament but affirmed the legal institution: During the Reformation, Martin Luther challenged traditional catholic doctrines raising marriage to a sacrament.

To this day, most Protestants acknowledge only two "sacraments", baptism and the communion. It is my understanding, moreover, that Friends do not acknowledge any religious oaths or rites (i.e., no "sacraments").

Luther, however, did uphold the institution of marriage as a legal status. In his view, marriage was something that the law should order - which our state marital laws do to this day. For example, clergy were subsequently appointed officials of the s tate authorized to perform marriage ceremonies.

Maryland law is in accord. A valid, public marriage ceremony is a legal prerequisite to attaining the legal status of marriage. In this state, a marriage ceremony may be performed either by a Circuit Court clerk or by "...any official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony." FL, 2-406(a).

Despite absence of clergy, marriage ceremonies conducted under the rules and customs of unprogrammed meetings of the Religious Society of Friends came to be authorized by Maryland law: The formal legal requirements of the Friends marriage certificate are set forth by Maryland statute, varying from the form utilized by religious orders with clergy; the form of the marriage ceremony is a purely religious matter. See, FL, 2-404(b)(2); 2-406(g); and 2-409.

Although the form of religious marriage ceremonies is left by Maryland law to each denomination, the public law of Maryland reserved to itself the determination of who may validly marry: Maryland law precludes certain people from attaining the legal status of marriage: people who are already married to someone else, people who are related too closely, and people who are not of different genders. Any "marriage ceremony" involving persons so legally disabled has no legal effect on their marital status (i.e., is "void" or "invalid").

Maryland's statutory law expressly denied the "validity" of same sex "marriages", a legal policy of nonrecognition which continues to this day: The Maryland statutory law of marriage provides that: "Only a marriage between a man and a woman is valid in this State." FL, 2-201. Thus, no ceremony will alter the legal status of same sex couples.

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