Married in the Eyes of God But Not the State?:
A Casualty of Casuistry
Rev. John A. Frahm III
13 Therefore submit yourselves to every ordinance of man for the Lord’s sake, whether to the king as supreme, 14 or to governors, as to those who are sent by him for the punishment of evildoers and for the praise of those who do good. 15 For this is the will of God, that by doing good you may put to silence the ignorance of foolish men— 16 as free, yet not using liberty as a cloak for vice, but as bondservants of God. 17 Honor all people. Love the brotherhood. Fear God. Honor the king. 1 Peter 2:13-17
Increasingly in our circles, one hears of assertions of “pastoral discretion” being invoked to support an “exception” in regard to marriage for cohabiting couples who are members of our congregations. The most commonly stated reason for such is financial in some form or another. The loss of benefits, purging of assets upon entering into a nursing home, or some other inheritance ramifications are cited as legitimate examples for pastors to conduct a “wedding in the eyes of God but not of the state.” This is emerging epidemic due for attention from those supervising our polity, as the first generations that passed through the sexual revolution of our culture are entering retirement age and natural marriage is under assault.
It is clear in the Treatise on the Power and Primacy of the Pope that if clergy exercise jurisdiction in civil matters of marriage it is by human authority and not constitutive of the office of the holy ministry in and of itself. The Treatise describes the situation where the bishops, who exercised such responsibilities only by extension of civil authority (left-hand kingdom) abused their powers and that therefore it is appropriate to re-establish civil authorities to handle such disputes regarding marriage:
There remains the jurisdiction in those cases which, according to canonical law, pertain to the ecclesiastical court, as they call it, and especially in cases of matrimony. This, too, the bishops have only by human right, and that, not a very old one, as appears from the Codex and Novellae of Justinian that decisions concerning marriage at that time belonged to the magistrates. And by divine right worldly magistrates are compelled to make these decisions if the bishops [judge unjustly or] are negligent. The canons also concede the same. Therefore, also on account of this jurisdiction it is not necessary to obey bishops. 78] And, indeed, since they have framed certain unjust laws concerning marriages, and observe them in their courts, there is need also for this reason to establish other courts.
Marriage is understood to be a matter obtained via the left-hand kingdom, though not without right-hand kingdom implications and concerns, to be sure. Since Lutherans use a different theological definition of a sacrament we do not enumerate marriage as a sacrament in the sense of Baptism, the Lord’s Supper or even Absolution, however, it does remain a mystery of God’s design and creation, with implications for the proper understanding of the Gospel. Apology XIII observes in a rather balanced way:
Matrimony was not first instituted in the New Testament, but in the beginning, immediately on the creation of the human race. It has, moreover, God’s command; it has also promises, not indeed properly pertaining to the New Testament, but pertaining rather to the bodily life. Wherefore, if any one should wish to call it a sacrament, he ought still to distinguish it from those preceding ones [the two former ones], which are properly signs of the New Testament, and testimonies of grace and the remission of sins. 15] But if marriage will have the name of sacrament for the reason that it has God’s command, other states or offices also, which have God’s command, may be called sacraments, as, for example, the magistracy.
The Augsburg Confession understands marriage as something enacted under the auspices of civil government (see AC XVI). Notably, AC XVI also points out strongly:
They [our churches ] condemn also those who do not place evangelical perfection in the fear of God and in faith, but in forsaking civil offices, for 5] the Gospel teaches an eternal righteousness of the heart. Meanwhile, it does not destroy the State or the family, but very much requires that they be preserved as ordinances of God, and that charity be practiced in such 6] ordinances. Therefore, Christians are necessarily bound to obey their own magistrates 7] and laws save only when commanded to sin; for then they ought to obey God rather than men. Acts 5:29.
While we would no doubt state that the nature of marriage itself is a reflection of the relationship of Christ and His Bride, the Church, marriage itself is contracted under the kingdom of the left, under the regulations of civil government. When the church capitulates to the debauchery of the culture in its confession of marriage, the preaching of the Gospel suffers, and the message is distorted. As the second epistle of John makes clear, we only know God truly through the rightly taught Word and not in some way abstracted from the Word. In both right and left hands of God’s rule, He works through such authorities in this fallen world of people, as imperfect as they are. This is clear in the explanation to the Fourth Commandment in both catechisms. Being subject to authority is a matter of the right and the left-hand kingdoms (Hebrews 13:17; Romans 13:1-2).
Christians are bound to obey their magistrates and laws except when sin itself is demanded. But the conduct of a wedding is not a “peculiar church power” but a civil matter, no matter the desire for the religious context and blessing. When a marriage is conducted properly under the auspices of the church, it is an exercise of both the right and the left-hand kingdom, so long as the proper civil authority is not subverted. The sentiment or romance of a man and a woman do not alone make for marriage. The fruits of the sexual revolution have referred to traditional marriage as simply a “piece of paper,” but the piece of paper also matters. The civil enactment of marriage makes clear that while there are private aspects to the intimacies of marriage, marriage itself is not simply a private or personal matter. Marriage cannot be reduced to the internal, subjective realm. Neither can the Gospel nor its concomitant implications. The Gospel does not unravel the two kingdoms nor does it undo the divine design of creation. The order of redemption or salvation is not contradictory of the order of creation. Addressing a radical reductionism of the gospel, the Apology puts it this way:
For the Gospel does not destroy the State or the family [buying, selling, and other civil regulations], but much rather approves them, and bids us obey them as a divine ordinance, not only on account of punishment, but also on account of conscience.
To the present question at hand, we should point out that hardships are not the same as being commanded to sin. Financial burdens such as taxes, fees, and obtaining a license and filing of certificates do not constitute a case for disobeying proper authority. While one might be greatly distressed by the financial burdens either federal or some state governments impose upon married couples in various circumstances, such instances, as difficult as they may be, do not constitute cause to depart the obligation to honor marriage under the civil authority of the left-hand kingdom.
To be sure, some states do have burdensome regulations that cause a loss of assets for married couples under some circumstances of elderly care. Some regulations do affect inheritance stipulations. It would be wise for Christians of some expertise and civil vocations to address these burdens through legal, democratic, and other means of redress, litigation, or legislation. However, in the matters of the church, clergy simply do not have the “pastoral discretion” to “make an exception” under the table to skirt financial implications of marriage, detour around a regulation, or defraud the state by treating something which is not as though it is.
4 Marriage is honorable among all, and the bed undefiled; but fornicators and adulterers God will judge. 5 Let your conduct be without covetousness; be content with such things as you have. For He Himself has said, “I will never leave you nor forsake you.” Hebrews 13:4-5
Since we understand in Scripture and the Confessions that marriage is contracted under civil authority, and when conducting a marriage rite, a pastor takes on certain legal obligations as a minister of the civil authorities by human right (de jure humano), he would likewise by the same understanding be defrauding the state along with the couple involved, were he to conduct a “wedding in the eyes of God but not the state.” According to Lutheran theology the very assertion of such, excerpt perhaps under some hypothetical circumstance which has not yet happened (under a public state of confession not just by individuals but by the church in a particular fellowship), would be a contradiction in terms. Clergy do not have a divine right (de jure divino) to conduct a wedding legally according to their office as pastor, but as allowed by civil law by human right. Clergy teach, lead prayer, and pronounce blessing in the context of the civil enactment of marriage. But the two things are distinct and can become separate activities if needed in the future.
The sad thing is that this basic understanding of marriage and civil authority is absent where the “exception” is offered rather than pastoral encouragement to either bear the cross of the financial burden or in the case of couples contemplating marriage at a later age, simply remain celibate and decline entering marriage (perhaps again) in old age if the financial burden is untenable. Unfortunately, sometimes people cohabit before discussing it with the pastor or considering all these things, and that is a messy situation. We bear in mind the words of Paul:
Brethren, if a man is overtaken in any trespass, you who are spiritual restore such a one in a spirit of gentleness, considering yourself lest you also be tempted. 2 Bear one another’s burdens, and so fulfill the law of Christ. Galatians 6:1-2
In our day, another problem the ecclesiastical supervisors and others should consider is that where such compassionately intended but wrong-headed “exceptions” are made, the church is potentially painting a target on its back for unwelcomed attention from civil authorities and putting other rights and benefits for the church in this country at risk. As we are emerging into this “Post-Christian” or “Post-Constantinian” era of history for the church in the western world, we need to be wary of short-sighted and ill-informed casuistry undermining not only our confession of the truth, but also our standing in the public square under civil authorities with its protections and obligations. In these days when civil authority is confused enough, to put it nicely, about the nature of life and marriage and religious liberty, we need to exercise caution with a view to the larger picture and not simply the emotion of a situation in front of us on a local level. Financial hardships can be handled and assisted in other ways. And we always need to preach the bearing the cross through all the vocations of one’s life.
For the grace of God that brings salvation has appeared to all men, 12 teaching us that, denying ungodliness and worldly lusts, we should live soberly, righteously, and godly in the present age, 13 looking for the blessed hope and glorious appearing of our great God and Savior Jesus Christ, 14 who gave Himself for us, that He might redeem us from every lawless deed and purify for Himself His own special people, zealous for good works. 15 Speak these things, exhort, and rebuke with all authority. Let no one despise you. Remind them to be subject to rulers and authorities, to obey, to be ready for every good work… Titus 2:11-3:1
Thanks be to God, we have seen in mercy no laws yet requiring mandatory abortion or mandatory “marriage” of people of the same sex. There would be clear cases where Acts 5:29 would be applied since there the civil authority would have clearly stepped beyond what is legitimate as an expression of God’s rule through the left-hand governance under natural law, reason, or good order (also Revelation 13). Romans 13 is not unconditional subservience. Taxes and fees have never been convenient and yet Romans 13 is clear. Pay what you owe (but it does not say pay extra). Honor the authorities, but put no trust in princes.
Life lived under both kingdoms is a life lived under the cross as one baptized into Christ. There may come times, as can be learned from the history of the church, where faithful Christians are called to pay the price under civil authorities which overstep their bounds and make not only burdensome demands but sinful and idolatrous demands. Then the beast must be resisted and then we must not allow ourselves to be marked as cattle belonging to a lord who is not the Lord God Almighty. The men who serve as pastors must be real men who will stand firm and encourage others to stand firm, not by their own reason or strength but by the strength that God provides in the fellowship of the Church. We walk in this world a lonely way… together in Christ.