COMMON LAW MARRIAGE Reduced Size

COMMON LAW MARRIAGE
COMMON LAW MARRIAGE

Ceremony
Five Reasons to not get a Marriage License
Wikipedia: Common Law Marriage
History of Marriage
Loving v. Commonwealth of Virginia, 388 U.S. 1
Martin Luther: Estate of Marriage
Meister v. Moore, 96 U.S. 76
Original Intent, Common Law Marriage
http://www.1215.org/lawnotes/misc/marriage/index.html[3/20/2011 20:33:58]
MARRIAGE
Marriage, a word from the 14th century French (marier) to marry.
Common-law marriage (or common law marriage), sometimes called informal marriage
or marriage by habit and reputation is, historically, a form of interpersonal
status in which a man and a woman are legally married. The term is often
mistakenly understood to indicate an interpersonal relationship that is not
recognized in law. In fact, a common law marriage is just as legally binding as
a statutory or ceremonial marriage in most jurisdictions — it is just formed
differently.
The idea of common law marriage emerged in medieval England, because clerics and
justices who officiated at marriages were not always able to travel to rural
locations where some couples lived. In that case, the couple could establish a
marriage "by common law."
Many U.S. states that do not have common law marriage, and some that do, have a
concept of a "putative spouse". Unlike someone in a common law marriage, a
putative spouse is not actually married. Instead a putative spouse believes he
or she is married in good faith and is given legal rights as a result of this
person's reliance upon this good faith belief. Putative spouse concepts, called
"deemed marriages" are also recognized under the Social Security program in the
United States.
One nearly universal tradition is that of the engagement ring. This custom can
be dated back to the ancient Romans. It is believed that the roundness of the
ring represents eternity. Therefore, the wearing of wedding rings symbolizes a
union that is to last forever. It was once thought that a vein or nerve ran
directly from the "ring" finger of the left hand to the heart.
HISTORY
Throughout human history, people married to arrange child rearing, pass on

property and organize life. Until relatively recently, most of these alliances
were not legally sanctioned but rather informal arrangements accepted by society
at large. The choice of partner was rarely left to the couple; parents and other
respected community elders made the match. Marriage was a way of turning
strangers into relatives, of making peace, of making permanent trading
connections. Marriage was a civil affair to which the Church could give its
blessing. In many different languages wives are called the equivalent of the
word "peace-weaver".
0000
The notion of marriage as a sacrament and not just a contract can be traced to
St. Paul who compared the relationship of a husband and wife to that of Christ
and his church (Eph. v, 23-32).
0400-1399
From the 5th to the 14th centuries, the Roman Catholic Church conducted special
ceremonies to bless same-sex unions which were almost identical for those
ceremonies to bless heterosexual unions. At the very least, these were
spiritual, if not sexual, unions.
0866
Pope Nicholas I declared in 866, "If the consent be lacking in a marriage, all
other celebrations, even should the union be consummated, are rendered void."
That shows the importance of a couple's consent to marriage. That concept has
remained an important part of church teaching through the years.
1076
In 1076, Pope Alexander II issued a decree prohibiting marriages between couples
who were more closely related than 6th cousins.
1100
The Twelfth century troubadours were the first ones who thought of courtly love
in the same way we do now. The whole notion of romance apparently didn't exist
until medieval times, and the troubadours.
1500-1921
In the 16th century, servants and day laborers were not allowed to marry in
Bavaria and Austria unless they had the permission of local political
authorities. This law was not finally abolished in Austria until 1921.
1520
Although Luther declared that marriage was not a sacrament but a "worldly
thing", all the Protestant sects have continued to regard it as religious in the
sense that it ought normally to be contracted in the presence of a clergyman.
Owing to the influence of the Lutheran view and of the French Revolution, civil
marriage has been instituted in almost all the countries of Europe and North
America, as well as in some of the states of South America.
1563
There appeared to be many marriages taking place without witness or ceremony in
the 1500's. The Council of Trent was so disturbed by this, that they decreed in
1563 that marriages should be celebrated in the presence of a priest and at
least two witnesses. Marriage took on a new role of saving men and women from
being sinful, and of procreation.
Thereafter, a marriage was only legal in Roman Catholic countries. This was not
accepted in the newly Protestant nations of Europe, of course; nor by
Protestants who lived in Roman Catholic countries or their colonies in the
Americas or elsewhere; nor by Eastern Orthodox Christians.
All Protestant and Eastern Orthodox countries in Europe eventually abolished

"marriage by habit and repute", with Scotland being the last to do so, in 2006.
Scotland had long been the sole exception in Europe.
1614
The first recorded interracial marriage in North American history took place
between Robert Rolfe and Pocahontas in 1614. In colonial Jamestown, the first
biracial Americans were the children of white-black, white-Indian, and black-
Indian unions. By the time of the American Revolution, somewhere between 60,000
and 120,000 people of “mixed” heritage resided in the colonies. During his
presidency, Thomas Jefferson begged Americans to consider “let[ting] our
settlements and [Indians’] meet and blend together, to intermix, and become one
people”
????-1662
Until 1662, there was no penalty for interracial marriages in any of the British
colonies in North America. In 1662, Virginia doubled the fine for fornication
between interracial couples. In 1664, Maryland became the first colony to ban
interracial marriages.
????-1686
Marriage was strictly a civil and not an ecclesiastical ceremony for the
Puritans in Massachusetts Bay until 1686. The Pilgrims outlawed courtship of a
daughter or a female servant unless consent was first obtained from parents or
master.
Love still wasn't a genuinely necessary ingredient for marriage during this era.
It was years later, the Puritans viewed marriage as a very blessed relationship
that gave marital partners an opportunity to not only love, but also to forgive.
1690-1870
From the 1690s to the 1870s, “wife sale” was common in rural and small-town
England. To divorce his wife, a husband could present her with a rope around her
neck in a public sale to another man.
1750
By 1750, all southern colonies, plus Massachusetts and Pennsylvania outlawed
interracial marriages.
1753
The British Parliament in 1753 said marriages were only valid in law if they
were performed by a priest of the Church of England—unless the participants in
the marriage were Jews or Quakers, both of whom were exempt from that provision.
That law did not apply to Britain's overseas colonies at that time, so the
practice continued in the future United States and Canada.
1759
George Washington married without a marriage license.
1800
In the Western world the idea of marrying for love emerged.
????-1850
Under English common law, and in all American colonies and states until the
middle of the 19th century, married women had no legal standing. They could not
own property, sign contracts, or legally control any wages they might earn.
1800-1899
Throughout most of the 19th century, the minimum age of consent for sexual
intercourse in most American states was 10 years. In Delaware it was only 7
years.
1848
In 1848, New York became the first state to pass a Married Woman’s Property Act,
guaranteeing the right of married women to own property.
????-1930
As late as 1930, twelve states allowed boys as young as 14 and girls as young as
12 to marry (with parental consent).
????-1940
As late as 1940, married women were not allowed to make a legal contract in
twelve states.
1967
In 1967, the U.S. Supreme Court struck down state anti-miscegenation laws in
Loving v. Virginia. As a result of the decision, Virginia and fifteen other
states had their anti-miscegenation laws declared unconstitutional.
What's Legally Valid and What's Not?
The United States Supreme Court in Meister v. Moore, 96 U.S. 76 (1877) said, "As
before remarked, the statutes are held merely directory; because marriage is a
thing of common right..." The statutes to which the Court was referring
purported to render invalid any marriages not entered into under the term of
written [statutory] state law.
Directory - A provision in a statute, rule of procedure, or the like, which is a

mere direction or instruction of no obligatory force, and involving no
invalidating consequence for its disregard, as opposed to an imperative or
mandatory provision, which must be followed. Black's Law Dictionary, 6th Ed.
While the various state courts have prattled on for almost 200 years about what
the laws of their states do and do not allow concerning marriage, the US Supreme
Court cut straight to the heart of the issue in declaring that statutes
controlling marriage can only be directory because marriage is a common right,
which is not subject to interference or regulation by government. Or phrased
another way, the God-given right to marry existed prior to the creation of the
states or the national government, and therefore it is beyond their purview to
alter, modify, abolish, or interfere with, such a right.
"Recognized" versus "Unlawful"
A lot of Americans hold the incorrect perception that common law marriage is
unlawful. Nothing could be further from the truth. There is no state law
anywhere that claims to make common law marriage "unlawful". Such a law could
not withstand the scrutiny of the US Supreme Court because the exercise of a
fundamental right is always lawful!
It is true that in many states common law marriage is not "recognized". Because
common law marriage is lawful, "not recognized" means that in the eyes of the
State "the marriage is not known, understood, or perceived to exist".
A "statutory marriage" is registered with the State as a result of the man and
woman applying for a State marriage license and thus entering into a three-party
contract with the State. The State keeps records of all contracts to which it is
a party and therefore such a marriage is "known to exist" to State authorities.
To state the point most clearly - "not recognized" does not mean, "invalid". No
state can arbitrarily declare common law marriage invalid by legislation, and
none have done so!
Validity of Marriage
What constitutes a "valid" marriage at common law?
Unless there is a controversy over the validity of a marriage, a marriage

thought proper by the consenting parties is a valid marriage.
The single most important element under common law is the mutual consent of the
couple presently to be husband and wife. All the rest is considered evidence of
this consent or exchange of promises. The only time requirement necessary was
time enough reasonably to establish these circumstances.
In summary, validity is often determined based a composite picture drawn from

the totality of the circumstances. Here are basic elements:
Both parties sign a marriage contract and have it notarized.

Have a ceremony.
Have three witnesses sign a marriage certificate.
Memorialize the ceremony in photographs or on video.
Cohabitate after the contract has been signed or the ceremony performed.
Let friends, co-workers, and people in the community know you and your spouse
are married.
By applying each of these elements, there is no court in America that can

declare your common law marriage invalid.
CEREMONY
Marilyn Roe
Robert Roe
Minister: "Who gives this woman to be married to this man?"
Minister: "If any person or persons here present know of any lawful reason why
this man and this woman should not be joined together in marriage, let them now
speak, or else forever hold their peace."
Minister states, "Dearly beloved, we are gathered here today to join this man
and this woman in holy matrimony."
Minister asks the man, "Robert Roe, do you take this woman to be your wife, to
live together in holy matrimony, to love, honor, comfort her and keep her in
sickness and in health, and forsaking all others?"
(Groom answers, "I do.")
Minister asks the Bride, "Marilyn Roe, do you take this man to be your husband,
to live together in holy matrimony, to love, honor, comfort him and keep him in
sickness and in health, and forsaking all others?"
(Bride answers, "I do.")
Minister states, "Repeat after me."
To the Groom: "I, Robert Roe, take you, Marilyn, to be my wife, to have and to
hold from this day forward, for better for worse, for richer for poorer, in
sickness and in health, to love and to cherish."
To the Bride: "I, Marilyn Roe, take you, Robert Roe, to be my husband, to have
and to hold from this day forward, for better for worse, for richer for poorer,
in sickness and in health, to love and to cherish."
Minister to Groom: "Place the ring on Marilyn's finger and repeat after me", "I
give you this ring as a token and pledge of our constant faith and abiding
love."
Minister to Bride: "Place the ring on Robert's finger and repeat after me", "I
give you this ring as a token and pledge of our constant faith and abiding
love."
Minister: "Please join hands."
"By the authority vested in me in accordance with the common laws in California,
I now pronounce you husband and wife. The LORD God said, [It is] not good that
the man should be alone. What therefore God hath joined together, let not man
put asunder. You may now kiss the bride."
marriage license Page 1 of 6
5 Reasons Why Christians Should Not Obtain a State

Marriage License
by Pastor Matt Trewhella
Every year thousands of Christians amble down to their local
county courthouse and obtain a marriage license from the State
in order to marry their future spouse. They do this
unquestioningly. They do it because their pastor has told them
to go get one, and besides, "everybody else gets one." This
pamphlet attempts to answer the question - why should we not
get one?
1. The definition of a "license" demands that we not obtain
one to marry. Black’s Law Dictionary defines "license" as,
"The permission by competent authority to do an act which
without such permission, would be illegal." We need to ask
ourselves- why should it be illegal to marry without the State’s
permission? More importantly, why should we need the State’s
permission to participate in something which God instituted
(Gen. 2:18-24)? We should not need the State’s permission to
marry nor should we grovel before state officials to seek it.
What if you apply and the State says "no"? You must
understand that the authority to license implies the power to
prohibit. A license by definition "confers a right" to do
something. The State cannot grant the right to marry. It is a
God-given right.
2. When you marry with a marriage license, you grant the

State jurisdiction over your marriage. When you marry with
a marriage license, your marriage is a creature of the State. It is
a corporation of the State! Therefore, they have jurisdiction
over your marriage including the fruit of your marriage. What
is the fruit of your marriage? Your children and every piece of
file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

property you own. There is plenty of case law in American

jurisprudence which declares this to be true.
In 1993, parents were upset here in Wisconsin because a test
was being administered to their children in the government
schools which was very invasive of the family’s privacy.
When parents complained, they were shocked by the school
bureaucrats who informed them that their children were
required to take the test by law and that they would have to
take the test because they (the government school) had
jurisdiction over their children. When parents asked the
bureaucrats what gave them jurisdiction, the bureaucrats
answered, "your marriage license and their birth certificates."
Judicially, and in increasing fashion, practically, your state
marriage license has far-reaching implications.
3. When you marry with a marriage license, you place
yourself under a body of law which is immoral. By
obtaining a marriage license, you place yourself under the
jurisdiction of Family Court which is governed by unbiblical
and immoral laws. Under these laws, you can divorce for any
reason. Often, the courts side with the spouse who is in
rebellion to God, and castigates the spouse who remains
faithful by ordering him or her not to speak about the Bible or
other matters of faith when present with the children.
As a minister, I cannot in good conscience perform a marriage
which would place people under this immoral body of laws. I
also cannot marry someone with a marriage license because to
do so I have to act as an agent of the State! I would have to
sign the marriage license, and I would have to mail it into the
State. Given the State’s demand to usurp the place of God and
family regarding marriage, and given it’s unbiblical, immoral
laws to govern marriage, it would be an act of treason for me
to do so.
4. The marriage license invades and removes God-given
parental authority. When you read the Bible, you see that
God intended for children to have their father’s blessing

regarding whom they married. Daughters were to be given in

marriage by their fathers (Dt. 22:16; Ex. 22:17; I Cor. 7:38).
We have a vestige of this in our culture today in that the father
takes his daughter to the front of the altar and the minister
asks, "Who gives this woman to be married to this man?"
Historically, there was no requirement to obtain a marriage
license in colonial America. When you read the laws of the
colonies and then the states, you see only two requirements for
marriage. First, you had to obtain your parents permission to
marry, and second, you had to post public notice of the
marriage 5-15 days before the ceremony.
Notice you had to obtain your parents permission. Back then
you saw godly government displayed in that the State
recognized the parents authority by demanding that the parents
permission be obtained. Today, the all-encompassing ungodly
State demands that their permission be obtained to marry.
By issuing marriage licenses, the State is saying, "You don’t
need your parents permission, you need our permission." If
parents are opposed to their child’s marrying a certain person
and refuse to give their permission, the child can do an end run
around the parents authority by obtaining the State’s
permission, and marry anyway. This is an invasion and
removal of God-given parental authority by the State.
5. When you marry with a marriage license, you are like a
polygamist. From the State’s point of view, when you marry
with a marriage license, you are not just marrying your spouse,
but you are also marrying the State.
The most blatant declaration of this fact that I have ever found
is a brochure entitled "With This Ring I Thee Wed." It is found
in county courthouses across Ohio where people go to obtain
their marriage licenses. It is published by the Ohio State Bar
Association. The opening paragraph under the subtitle
"Marriage Vows" states, "Actually, when you repeat your
marriage vows you enter into a legal contract. There are three

parties to that contract. 1.You; 2. Your husband or wife, as the

case may be; and 3. the State of Ohio."
See, the State and the lawyers know that when you marry with
a marriage license, you are not just marrying your spouse, you
are marrying the State! You are like a polygamist! You are not
just making a vow to your spouse, but you are making a vow
to the State and your spouse. You are also giving undue
jurisdiction to the State.
When Does the State Have Jurisdiction Over a Marriage?
God intended the State to have jurisdiction over a marriage for
two reasons - 1). in the case of divorce, and 2). when crimes
are committed i.e., adultery, bigamy. etc. Unfortunately, the
State now allows divorce for any reason, and it does not
prosecute for adultery.
In either case, divorce or crime, a marriage license is not
necessary for the courts to determine whether a marriage
existed or not. What is needed are witnesses. This is why you
have a best man and a maid of honor. They should sign the
marriage certificate in your family Bible, and the wedding day
guest book should be kept.
Marriage was instituted by God, therefore it is a God-given
right. According to Scripture, it is to be governed by the
family, and the State only has jurisdiction in the cases of
divorce or crime.
History of Marriage Licenses in America
George Washington was married without a marriage license.

So, how did we come to this place in America where marriage
licenses are issued?
Historically, all the states in America had laws outlawing the
marriage of blacks and whites. In the mid-1800’s, certain states

began allowing interracial marriages or miscegenation as long

as those marrying received a license from the state. In other
words they had to receive permission to do an act which
without such permission would have been illegal.
Blacks Law Dictionary points to this historical fact when it
defines "marriage license" as, "A license or permission granted
by public authority to persons who intend to intermarry."
"Intermarry" is defined in Black’s Law Dictionary as,
"Miscegenation; mixed or interracial marriages."
Give the State an inch and they will take a 100 miles (or as one
elderly woman once said to me "10,000 miles.") Not long after
these licenses were issued, some states began requiring all
people who marry to obtain a marriage license. In 1923, the
Federal Government established the Uniform Marriage and
Marriage License Act (they later established the Uniform
Marriage and Divorce Act). By 1929, every state in the Union
had adopted marriage license laws.
What Should We Do?
Christian couples should not be marrying with State marriage
licenses, nor should ministers be marrying people with State
marriage licenses. Some have said to me, "If someone is
married without a marriage license, then they aren’t really
married." Given the fact that states may soon legalize same-sex
marriages, we need to ask ourselves, "If a man and a man
marry with a State marriage license, and a man and woman
marry without a State marriage license - who’s really married?
Is it the two men with a marriage license, or the man and
woman without a marriage license? In reality, this contention
that people are not really married unless they obtain a marriage
license simply reveals how Statist we are in our thinking. We
need to think biblically. (As for homosexuals marrying, outlaw
sodomy as God's law demands, and there will be no threat of
sodomites marrying.)
You should not have to obtain a license from the State to marry

someone anymore than you should have to obtain a license

from the State to be a parent, which some in academic and
legislative circles are currently pushing to be made law.
When I marry a couple, I always buy them a Family Bible
which contains birth and death records, and a marriage
certificate. We record the marriage in the Family Bible. What’s
recorded in a Family Bible will stand up as legal evidence in
any court of law in America. Early Americans were married
without a marriage license. They simply recorded their
marriages in their Family Bibles. So should we.
(Pastor Trewhella has been marrying couples without marriage
licenses for ten years. Many other pastors also refuse to marry
couples with State marriage licenses.)
This pamphlet is not comprehensive in scope. Rather, the
purpose of this pamphlet is to make you think and give you a
starting point to do further study of your own. If you would
like an audio sermon regarding this matter, just send a gift
of at least five dollars in cash to: Mercy Seat Christian
Church 10240 W. National Ave. PMB #129 Milwaukee,
Wisconsin 53227.
www.mercyseat.net)
This pamphlet is available in print form. Click here to order.

Common-law marriage - Wikipedia, the free encyclopedia Page 1 of 10
Common-law marriage
From Wikipedia, the free encyclopedia
(Redirected from Common law marriage)
Family law
Entering into marriage
Prenuptial agreement · Marriage
Common-law marriage
Same-sex marriage
Legal states similar to marriage
Cohabitation · Civil union
Domestic partnership
Registered partnership
Dissolution of marriage
Annulment · Divorce · Alimony
Issues affecting children
Paternity · Legitimacy · Adoption
Legal guardian · Ward
Emancipation of minors
Parental responsibility
Contact (including Visitation)
Residence in English law
Custody · Child support
Areas of possible legal concern
Spousal abuse · Child abuse
Child abduction
Adultery · Bigamy · Incest
Conflict of Laws Issues
Marriage · Nullity · Divorce
Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by
habit and repute is, historically, a form of interpersonal status in which a man and a woman are legally married.
The term is often mistakenly understood to indicate an interpersonal relationship that is not recognized in law. In
fact, a common law marriage is just as legally binding as a statutory or ceremonial marriage in most jurisdictions
— it is just formed differently.
mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

Contents
■ 1 Essential distinctions
■ 2 History
■ 3 Australia
■ 4 Canada
■ 4.1 Ontario
■ 4.2 Québec
■ 4.3 Other Provinces
■ 5 United Kingdom
■ 5.1 Scotland
■ 6 Israel
■ 7 United States
■ 7.1 Alabama
■ 7.2 Colorado
■ 7.3 District of Columbia
■ 7.4 Iowa
■ 7.5 Kansas
■ 7.6 Montana
■ 7.7 New Hampshire
■ 7.8 Oklahoma
■ 7.9 Rhode Island
■ 7.10 South Carolina
■ 7.11 Texas
■ 7.12 Utah
■ 8 Putative spouses
■ 9 See also
■ 10 External links
Essential distinctions
The essential distinctions of a common law marriage are:
1. Common law marriages are not licensed by government authorities.

2. Common law marriages are not necessarily solemnized.
3. There is no public record of a common law marriage (i.e., no marriage certificate).
4. Cohabitation alone does not amount to common law marriage; the couple in question must hold themselves
out to the world to be husband and wife.
5. In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and
wife for a minimum length of time for the marriage to be recognised as valid.
Otherwise, the requirements are the same for common law marriage as they are for statutory marriage, i.e., the
parties must mutually consent to be married, be of legal age or have their parents' permission, and so on.
There is no such thing as "common law divorce." Once a marriage is validly contracted, whether according to
statute or according to common law, the marriage can only be dissolved by a legal proceeding in the pertinent trial
court (usually family court or probate court).
Since the mid-1990s, the term "common-law marriage" has been used in parts of Europe and Canada to describe
various types of domestic partnership between persons of the same sex as well as persons of the opposite sex.
Although these interpersonal statuses are often, as in Hungary, called "common-law marriage" they differ from

true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal
status, known in most jurisdictions as "domestic partnership" or "registered partnership."
History
Most marriages in Europe were common law marriages until the Council of Trent convened 1545–1563.
Thereafter, a marriage was only legal in Roman Catholic countries if it were witnessed by a priest of the Roman
Catholic Church. This was not accepted in the newly Protestant nations of Europe, of course; nor by Protestants
who lived in Roman Catholic countries or their colonies in the Americas or elsewhere; nor by Eastern Orthodox
Christians.
Nevertheless, all Protestant and Eastern Orthodox countries in Europe eventually abolished "marriage by habit
and repute", with Scotland being the last to do so, in 2006. Scotland had long been the sole exception in Europe.
The practice persevered in Scotland because the Acts of Union 1707 provided it retained its own legal system
separately from the rest of the Kingdom of Great Britain. Thus, Lord Hardwicke's Act, passed by the British
Parliament in 1753, did not apply to Scotland. It did apply to England and Wales, however (and apparently to
Ireland, after the Act of Union 1800), where marriages were only valid in law if they were performed by a priest
of the Church of England—unless the participants in the marriage were Jews or Quakers, both of whom were
exempt from that provision.
Lord Hardwicke's Act did not apply to Britain's overseas colonies at that time, so the practice continued in the
future United States and Canada. Common law marriages may still be contracted in eleven US states and the
District of Columbia, and in several Canadian provinces.
Australia
See also: Australian family law
In Australia the term de facto marriage is often used to refer to relationships between men and women who are
not married but are effectively living as husband and wife for a period of time, however common-law marriage is
sometimes heard. The Federal parliament has power to legislate for marriages, which it first did in 1959 with the
Matrimonial Causes Act (covering divorces, etc.) and in 1961 with the Marriage Act, both of which are now
replaced by the 1975 Family Law Act. The Federal parliament has no power over de-facto marriages, and thus all
Australian states and territories have legislation covering aspects of de-facto marriages, such as property
distribution, custody of children, etc. if a relationship ends. Most laws dealing with taxation, social welfare,
pensions, etc. treat de-facto marriages in the same manner as solemnized marriages.
Canada
Under Canadian law, the legal definition and regulation of common law marriage fall under provincial
jurisdiction. A couple must meet the requirements of their province's Marriage Act for their common law
marriage to be legally recognized.
However, in many cases common law couples have the same rights as married couples under federal law. Various
federal laws include "common law status," which automatically takes effect once two people (of any gender) have
lived together in a conjugal relationship for one full year. Common law partners may be eligible for various
federal government spousal benefits. As family law varies between provinces, there are differences between the
provinces regarding the recognition of common law marriage.

In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be
included in common law relationships.
Ontario
In Ontario, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with
spousal support issues; the requirements are living together for three years or having a child in common and
having "cohabitated in a relationship of some permanence." The one-year must be continuous; however a breakup
of a few days during the one-year period will not affect a person's status as common law [1]. However, the part
that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married
together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always
evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting
trust to divide property in an equitable manner between partners. Another difference that distinguishes common
law spouses from married partners is that a common law partner can be compelled to testify against his or her
partner in a court of law.
Québec
Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a
kind of marriage. See about De Facto Marriage in Québec. However, many laws in Québec explicitly apply to
common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses. See a List of These
Rights and Freedoms. Same-sex partners can also have recognized "de facto unions" in Québec.
A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called civil union that
is similar to common-law marriage and is likewise available to same-sex partners.
Other Provinces
The requirements in some other provinces are as follows:

In British Columbia and Nova Scotia you must cohabit for two years in a marriage-like relationship [2].
In New Brunswick, you must live together continuously in a family relationship for three years.
United Kingdom
The term "common law marriage" is frequently used in England and Wales, however such a "marriage" is not
recognised in law, and it does not confer any rights or obligations on the parties. See also English law. Genuine
(that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act, 1753. Prior to
that point, marriage was by consent under Roman Law, and by consummation under canon law. [3] "Common
law marriage" survives in England and Wales only in a few highly exceptional circumstances, where people who
want to marry but are unable to do so any other way can simply declare that they are taking each other as husband
and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were
held to be legally married.
Unmarried partners are recognised for certain purposes in legislation, e.g., for means-tested benefits. For example,
in the Jobseekers Act 1995, '"unmarried couple" means a man and woman who are not married to each other but
are living together as husband and wife otherwise than in prescribed circumstances. [4]
Scotland
Under Scots law, there have been several forms of "irregular marriage". These were:

1. Irregular Marriage by declaration de presenti - Declaring in the presence of two witnesses that you take
someone as your wife or husband. 2. Irregular Marriage conditional on consummation. 3. Irregular Marriage with
co-habitation and repute.
The Marriage (Scotland) Act 1939 provided that the 1st and 2nd forms of Irregular marriage could not be formed
on or after 1st January 1940. However, any Irregular Marriages contracted prior to 1940 can still be upheld. This
act also allowed the creation of Regular Civil Marriages in Scotland for the first time. (The civil registration
system started in Scotland on 1st January 1855.) Until this act the only Regular Marriage available in Scotland
was a religious marriage. Irregular Marriages were not socially accepted and many people who decided to
contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the
Blythswood Registration District of Glasgow were "Irregular".
In 2006 "marriage by cohabitation with habit and repute" was also abolished in the Family Law (Scotland) Act
2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally
abolished the old style common-law marriage. For this law to apply the minimum time the couple have lived
together continuously had to have exceeded 20 days.
As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not
enough for the couple to have lived together for several years, but they must have been generally regarded as
husband and wife, e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at
least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-and-so). And, as with
American common-law marriages, it is a form of lawful marriage, so that nobody can say they are common-law
spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to
somebody else when the relationship began.
It is a testament to the influence of English and American legal thought that, for a study conducted by the Scottish
Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law
marriage." In fact, that term is unknown in Scots Law, which uses "marriage by cohabitation with habit and
repute." "Common-law marriage" is an Anglo-American term. Otherwise, men and women who otherwise behave
as husband and wife do NOT have a common-law marriage or a marriage by habit and repute merely because they
set up housekeeping together, but they MUST hold themselves out to the world as husband and wife. (In many
jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not
clear on these points. It notes that "common law marriage" is not part of Scots Law, but fails to note that
"marriage by cohabitation with habit and repute" - which is the same thing - is part of Scots Law.
Upon entering into or establishing an irregular marriage a Declarator's Warrant is obtained from the Sheriff Court.
This is then taken to the Registry Office and the marriage is entered into the Register of Marriages. This step does
not create the marriage, but merely enables the existence of the marriage to be authenticated in written form.
Israel
Israeli law recognizes common-law marriage (‫ )ידוע בציבור‬particularly since an apparatus for civil marriage is
absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions
for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be
recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in
order to gain access to the various benefits and rights which accompany a common-law marriage.
United States
In Meister v. Moore, 96 U.S. 76 (1877), the United States Supreme Court, relying on Hutchins v. Kimmell, 31
Mich. 126 (1875) ruled that Michigan had not abolished common law marriage merely by producing a statute

which established rules for the solemnization of marriages, because it did not require marriages to be solemnized
— it only required that, if a marriage were solemnized, it could only be solemnized as provided by law.
Otherwise, the court found that, as the right to marry existed at common law, the right to marriage according to
the tradition of that common law remained valid until such time as state law affirmatively changed it. The Court
did not find it necessary to pass special legislation specifically outlawing the common law contract of a marriage,
but it was sufficient for a state's general marriage statutes to clearly indicate no marriage would be valid unless the
statutory requirements enumerated were followed.
Common-law marriage can still be contracted in the following jurisdictions: Alabama, Colorado, the District of
Columbia, Iowa, Kansas, Montana, New Hampshire (posthumously), Oklahoma, Rhode Island, South Carolina,
Texas, and Utah. Note there is no such thing as "common-law divorce" — that is, you can't get out of a common-
law marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else
about the marriage is perfectly regular. People who marry per the old common law tradition must petition the
appropriate court in their state for a dissolution of marriage.
The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish
common-law marriage (PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d
1269 (Pa. Cmwlth. 2003)) even though the state Supreme Court had recognized (albeit somewhat reluctantly) the
validity of common-law marriages only five years before. (Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d
1016 (1998).) The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law
marriages entered into after January 1, 2005. (Act 144 of 2004, amending 23 Pa.C.S. Section 1103.) However, it
is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date
of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before
January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos
decision. (Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), with Stackhouse v.
Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).)
Common-law marriage can no longer be contracted in the following states, as of the dates given: Alaska (1917),
Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905),
Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820),
Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska
(1923), Nevada (1943), New Mexico (1860), New York (1933, also 1902-1908), New Jersey (1939), North
Dakota (1890), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917).
The following states never permitted common-law marriage: Arkansas, Connecticut, Delaware, Louisiana,
Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming.
Note that Louisiana is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it
is a former Council of Trent jurisdiction and common-law marriage was never known there.
Nevertheless, all states — including those that have abolished common-law marriage — continue to recognise
common-law marriages lawfully contracted in those U.S. jurisdictions that still permit this irregular contract of a
marriage. Contrary to popular belief, this is not the result of the Full Faith and Credit Clause of the U.S.
Constitution — which has never been held to require one state to recognize marriages created under the law of
another, and is completely irrelevant to common-law marriages to start with because there is no sister-state public
act, public record or judicial proceeding to recognise pursuant to the clause. Rather, states recognise each other's
marriages, and those from foreign countries, under their own conflict and choice-of-law rules. In general, a
marriage that is validly contracted in the foreign state will be recognized as valid in the forum state, unless the
marriage is odious to the public policy of the forum state.
This may have changed in California, however, as an unintended consequence of Proposition 22. This was a voter
initiative statute intended to deny California recognition to sister-state same-sex marriages (which already could
not be performed in California), but the language of the initiative was sufficiently broad that it could be construed

to outlaw recognition of sister-state common law marriages between men and women, as well as sister-state same-
sex marriages. The question has not yet been litigated.
The requirements for a common-law marriage to be valid differ from state to state:
Alabama
The requirements for a common-law marriage are: "(1) capacity; (2) present agreement or mutual consent to enter
into the marriage relationship ...; (3) public recognition of the existence of the marriage; and (4) cohabitation or
mutual assumption openly of marital duties and obligations." See Creel v. Creel, 763 So. 2d 943 (Ala. 2000),
quoting Adams v. Boan, 559 So. 2d 1084, 1086 (Ala. 1990).
Colorado
The elements of a common-law marriage are, if both spouses: (1) are legally free to contract a valid ceremonial
marriage, (2) hold themselves out as husband and wife; (3) consent to the marriage; (4) cohabitate; and (5) have
the reputation in the community as being married (Colorado Attorney General - FAQ: Common-Law Marriage).
See also: Colorado Common Law Marriage Article
Effective September 1, 2006, Colorado no longer recognizes common law marriages, regardless of where the
marriage was entered into, where the parties are not both eighteen years of age or older. Colorado Revised
Statutes, Sections 14-2-104 and 14-2-109.5.
District of Columbia
The elements of a common-law marriage are: (1) "an express, mutual, present intent and agreement to be husband
and wife"; "followed by" (2) "cohabitation in good faith." See Jackson v. Young, 546 A.2d 1009 (D.C. App.
1988), quoting Johnson v. Young, 372 A.2d 992, 994 (D.C. App. 1977). See good overview at Dickey v. Office of
Personnel Management, 419 F.3d 1336 (Fed.Cir., 2005).
Iowa
"The three elements of a common-law marriage are: (1) the present intent and agreement to be married; (2)
continuous cohabitation; and (3) public declaration that the parties are husband and wife. Martin, 681 N.W.2d at
617. The public declaration or holding out to the public is considered to be the acid test of a common-law
marriage. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977)." See Snyder-Murphy v. City of Cedar
Rapids (Iowa 2004)
Kansas
Under Kansas Statute 23-101 (2002), both parties to a common-law marriage must be 18 years old. The three
requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry; (2) a
present marriage agreement; and (3) a holding out of each other as husband and wife to the public. See In the
Matter of the Petition of Lola Pace (Kan. 1999)
Montana
A common-law marriage is established when a couple: "(1) is competent to enter into a marriage, (2) mutually
consents and agrees to a common law marriage, and (3) cohabits and is reputed in the community to be husband
and wife." See Snetsinger v. Montana University System, 325 Mont. 148, 104 P.3d 445, quoting In re Ober, 314
Mont. 20, 62 P.3d 1114.

New Hampshire
"Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the
period of 3 years," are recognized by the state as being legally married after one spouse dies. Thus, the state
posthumously recognises common-law marriages ensuring that a surviving spouse inherits without any difficulty.
See: NH RSA 457:39 Cohabitation, etc.
Oklahoma
The criteria for a common-law marriage are: (1) "an actual and mutual agreement between the spouses to be
husband and wife;" (2) "a permanent relationship;" (3) "an exclusive relationship, proved by cohabitation as man
and wife;" and (4) "the parties to the marriage must hold themselves out publicly as husband and wife." See
Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983).
Rhode Island
The criteria for a common-law marriage are: (1) the parties seriously intended to enter into the husband-wife
relationship; (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were
married. See DeMelo v. Zompa, 844 A.2d 174, 177 (R.I. 2004) (pdf).
South Carolina
The criteria for a common law marriage are: (1) when two parties have a present intent (usually, but not
necessarily, evidenced by a public and unequivocal declaration) to enter into a marriage contract; and (2) "a
mutual agreement between the parties to assume toward each other the relation of husband and wife." See
Tarnowski v. Lieberman (S.C. Ct. App. 2002). The minimum age for such a marriage is fourteen years old as
established by South Carolina Code of Laws 20-1-100 (2004). For this law to apply the minimum time the couple
have lived together continuously had to have exceeded 30 days.
Texas
Common-law marriage is known as an "informal marriage," which can be established either by declaration
(registering at the county courthouse without having a ceremony), or by meeting a 3-prong test showing evidence
of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are
married. While in the actual wording of the law there is no specification on the length of time that a couple must
cohabitate to meet the second requirement of the 3-prong test, it is understood within Texas law that cohabitation
must occur for an extended period of time, usually two years, but in certain cases where the situation is more
complicated and other factors are involved, three years can be the requisite time period. However, if a couple does
not commence a proceeding to prove their relationship was a marriage within two years of the end of their
cohabitation and relationship, by law the marriage never existed in the first place, and no agreement to be married
was ever present. (Obviously the wording can cause complications because cessation of relationship and cessation
of cohabitation are not mutually inclusive — thus, the law is vague and interpretable.) See Texas Family Code
Sec. 2.401.
Utah
For a common-law marriage to be legal and valid, "a court or administrative order must establish that it arises out
of a contract between a man and a woman" who: (1) "are of legal age and capable of giving consent"; (2) "are
legally capable of entering a solemnized marriage under the provisions of Title 30, Chap. 1 of the Utah Code; (3)
"have cohabited"; (4) "mutually assume marital rights, duties, and obligations"; and (5) "who hold themselves out

as and have acquired a uniform and general reputation as husband and wife" (See Utah Code Ann. 30-1-4.5
(2004)).
Putative spouses
Many U.S. states that do not have common law marriage, and some that do, have a concept of a "putative spouse".
Unlike someone in a common law marriage, a putative spouse is not actually married. Instead a putative spouse
believes himself or herself to be married in good faith and is given legal rights as a result of this person's reliance
upon this good faith belief.
A number of states followed the example of the Uniform Marriage and Divorce Act (also sometimes called the
Model Marriage and Divorce Act) to establish the concept of a "Putative Spouse" by statute. The concept has
been codified in California, Colorado, Illinois, Louisiana, Minnesota and Montana. [5] Case law provides for
putative spouse rights in Nebraska, Washington state and Nevada. [6] Colorado and Montana are the only U.S.
states to have both common law marriage and to formally recognize putative spouse status. Putative spouse
concepts, called "deemed marriages" are also recognized under the Social Security program in the United States.
[7]
The putative spouse concept is likewise recognized in Australia. [8]
In Colorado, which is typical, "Any person who has cohabited with another person to whom he is not legally
marriaged in the good faith belief that he was married to that person is a putative spouse until knowledge of the
fact that he is not legally married terminates his status and prevents acquisition of further rights." Section 14-2-
111, Colorado Revised Statutes.
Putative spouse status is a remedial doctrine designed to protect the reasonable expectations of someone who acts
on the belief that they are married, and generally entitled a putative spouse to the rights a legal spouse would have
for the period from the putative marriage until discovery that the marriage was not legal. It is possible that a
person could have both a legal spouse and someone is a putative spouse, in which case, courts are directed to do
what seems appropriate in the circumstances.
Unlike a common law marriage, which is possible only when both spouses are legally eligible to marry, putative
spouse status can be unilateral. For example, if a husband is married, but goes through a marriage ceremony
without informing the woman with whom he goes through with the ceremony of that fact, the husband is not a
putative spouse, because he knows that he has no right to marry. The wife however is a putative spouse because
she in good faith believes that she is married, and has no knowledge that she is not legally married. See, e.g.
Carndell v. Resley, 804 P.2d 272 (Colo. App. 1990) and Williams v. Fireman's Fund Ins. Co., 670 P.2d 453
(Colo. App. 1983).
In the example above, the putative wife who believed she was married could seek the property division and
alimony awards that a legal spouse could have, when the putative spouse discovers that she is not legally married,
but the man she believed she was married to could not seek a property division of property in the putative wife's
name or alimony from her, because he knew that they weren't married.
See also
■ Family
■ Family law
■ Child
■ Illegitimacy
■ Interpersonal relationship and Intimate relationship
■ Cohabitation

■ Divorce
■ Domestic partnership
■ Marriage
■ POSSLQ
External links
■ The Alternatives to Marriage Project is a national US organization for unmarried people
■ Dorian Solot and Marshall Miller, Common Law Marriage Fact Sheet
■ Demystifying Common Law Marriage
■ The National Marriage Project at Rutgers University
■ Treatise on Common Law Marriage
Retrieved from "http://en.wikipedia.org/wiki/Common-law_marriage"
Categories: Marriage | Family law
■ This page was last modified 20:42, 19 October 2006.

■ All text is available under the terms of the GNU Free Documentation License. (See Copyrights for details.)
Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc.
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Partners Task Force - Marriage History - Peterson Page 1 of 3
Partners Task Force for Gay & Lesbian Couples

Demian, director, Partners Task Force, Box 9685, Seattle, WA 98109-0685
206-935-1206 || demian@buddybuddy.com || http://www.buddybuddy.com/
The History of Marriage as an Institution

by Larry R. Peterson, Ph.D.
© 1997, Larry R. Peterson
Virtually all scholars agree that we have witnessed a major transition in the meaning of
marriage in the years from 1600 to 1995. In 1600, marriage for almost all Europeans and
Europeans in America was primarily an economic arrangement negotiated between
families in which family considerations of status, future economic stability, and
prosperity were the most important considerations in selecting a potential spouse. By
1995, most Americans consider the primary purpose of marriage to be a commitment to
emotional and psychological support between two individuals.
Here are hisorical notations about some of the dramatic changes in the legal structure of
marriage in Western Europe and the United States.
1. From the 5th to the 14th centuries, the Roman Catholic Church conducted special
ceremonies to bless same-sex unions which were almost identical for those to
bless heterosexual unions. At the very least, these were spiritual, if not sexual,
unions.
2. In 1076, Pope Alexander II issued a decree prohibiting marriages between couples

who were more closely related than 6th cousins.
3. In the 16th century, servants and day laborers were not allowed to marry in
Bavaria and Austria unless they had the permission of local political authorities.
This law was not finally abolished in Austria until 1921.
4. From the 1690s to the 1870s, “wife sale” was common in rural and small-town
England. To divorce his wife, a husband could present her with a rope around her
neck in a public sale to another man.
5. Marriage was strictly a civil and not an ecclesiastical ceremony for the Puritans in
Massachusetts Bay until 1686.
6. The Pilgrims outlawed courtship of a daughter or a female servant unless consent

was first obtained from parents or master.
7. Until 1662, there was no penalty for interracial marriages in any of the British
colonies in North America. In 1662, Virginia doubled the fine for fornication
between interracial couples. In 1664, Maryland became the first colony to ban
interracial marriages. By 1750, all southern colonies, plus Massachusetts and
Pennsylvania outlawed interracial marriages.
file://E:\INET\1215\public_html\lawnotes\misc\marriage\history-of-marriage-chronology.... 10/31/2010
8. Under English common law, and in all American colonies and states until the
middle of the 19th century, married women had no legal standing. They could not
own property, sign contracts, or legally control any wages they might earn.
9. In 1848, New York became the first state to pass a Married Woman’s Property
Act, guaranteeing the right of married women to own property.
10. Throughout most of the 19th century, the minimum age of consent for sexual
intercourse in most American states was 10 years. In Delaware it was only 7
years.
11. As late as 1930, twelve states allowed boys as young as 14 and girls as young as
12 to marry (with parental consent).
12. As late as 1940, married women were not allowed to make a legal contract in
twelve states.
13. In 1967, the U.S. Supreme Court struck down state anti-miscegenation laws in
Loving v. Virginia.
As a result of the decision, Virginia and fifteen other states had their anti-
miscegenation laws declared unconstitutional. Those states were: Alabama,
Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Mississippi,
Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and West
Virginia.
In the fifteen years prior to the decision, fourteen states had repealed their anti-
miscegenation laws. Those fourteen states were: Arizona, California, Colorado,
Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon,
South Dakota, Utah, and Wyoming.
14. In 1978, New York became the first state to outlaw rape in marriage. By 1990,
only a total of ten states outlawed rape in marriage. In thirty-six states rape in
marriage was a crime only in certain circumstances. In four states, rape in
marriage was never a crime.
These examples, and there are more, clearly document that marriage has not been an
unchanging institution with unchanging definitions of who can marry and under what
circumstances. Those who claim otherwise distort the historical record.
Footnotes
For the opening paragraphs:

Edward Shorter, The Making of the Modern Family, (New York: Basic Books, 1975); Carl
N. Degler, At Odds: Women and the Family in America from the Revolution to the Present,
(New York: Oxford University Press, 1980); Michael Mitterauer and Reinhard Sieder, The
European Family: Patriarchy to Partnership from the Middle Ages to the Present (Chicago:
University of Chicago Press, 1982); Steven Mintz and Susan Kellogg, Domestic
Revolutions: A Social History of American Family Life, (New York: MacMillan, 1988);
John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in
America, (New York: Harper & Row, 1988).
1. John Boswell, Same-Sex Unions in Premodern Europe, (New York: Villard Books, 1994).
2. Jack Goody, The Development of the Family and Marriage in Europe, (New York: Cambridge
University Press, 1983) pp. 136-138.
3. Mitterauer and Sieder, p. 123.
4. John R. Gillis, For Better, For Worse: British Marriages, 1600 to the Present, (New York: Oxford
University Press, 1985) pp. 211-217.
5. Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth Century
New England. rev. ed. (New York: Harper & Row, 1966) p. 32.
6. John Demos, A Little Commonwealth: Family Life in Plymouth Colony, (New York: Oxford
University Press, 1970) p. 154.
7. D’Emilio and Freedman, pp. 34-36.
8. Sara M. Evans, Born for Liberty: A History of Women in America, (New York: Free Press, 1989),
p. 22.
9. Evans, p. 94.
10. Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America. (Cambridge,
MA.: Belknap Press of Harvard University Press, 1977), p. 465.
11. Mintz and Kellogg, p. 126.
12. Degler, p. 333.
13. Loving v. Virginia, 388 US 1, 18 L ed 2d, United States Supreme Court Reports, October Term,
1966, Lawyers’ Edition, Second Series, Volume 18 (Rochester, N.Y.: Lawyers Cooperative
Publishing Company, 1968) p.1014n.
14. Jane Sherron De Hart and Linda K. Kerber, “Gender and The New Women’s History,” in Linda K.
Kerber and Jane Sherron De Hart, eds. Women’s America: Refocusing the Past, 4th ed. (New
York: Oxford University Press, 1995) p. 13.
Article © 1997, Larry R. Peterson, Ph.D.

Larry R. Peterson is a full professor, chairs the Dept. of History and may be reached at:
Minard Hall 412J, Box 5075, North Dakota State University, Fargo, North Dakota
58105-5075
701-231-8824; fax 701-231-1047; lpeterso@plains.nodak.edu
Return to: Partners: Table of Contents
Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)
388 U.S. 1
87 S.Ct. 1817
18 L.Ed.2d 1010
Richard Perry LOVING et ux., Appellants,

v.
COMMONWEALTH OF VIRGINIA.
No. 395.
Argued April 10, 1967.

Decided June 12, 1967.
Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard

S. Cohen, Alexandria, Va., for appellants.
R. D. McIlwaine, III, Richmond, Va., for appellee.
William M. Marutani, Philadelphia, Pa., for Japanese American Citizens

League, as amicus curiae, by special leave of Court.
Page 2
Mr. Chief Justice WARREN delivered the opinion of the Court.
This case presents a constitutional question never addressed by this

Court: whether a statutory scheme adopted by the State of Virginia to prevent
marriages between persons solely on the basis of racial classifications violates
the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For
reasons which seem to us to reflect the central meaning of those constitutional
commands, we conclude that these statutes cannot stand consistently with the
Fourteenth Amendment.
In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman,

and Richard Loving, a white man, were married in the District of Columbia
pursuant to its laws. Shortly after their marriage, the Lovings returned to
Virginia and established their marital abode in Caroline County. At the October
Term, 1958, of the Circuit Court
Page 3
of Caroline County, a grand jury issued an indictment charging the Lovings with
violating Virginia's ban on interracial marriages. On January 6, 1959, the
Lovings pleaded guilty to the charge and were sentenced to one year in jail;
however, the trial judge suspended the sentence for a period of 25 years on the
condition that the Lovings leave the State and not return to Virginia together
for 25 years. He stated in an opinion that:
'Almighty God created the races white, black, yellow, malay and red,
and he placed them on separate continents. And but for the interference with his
arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend for the races to mix.'
After their convictions, the Lovings took up residence in the District
of Columbia. On November 6, 1963, they filed a motion in the state trial court
to vacate the judgment and set aside the sentence on the ground that the
statutes which they had violated were repugnant to the Fourteenth Amendment. The
motion not having been decided by October 28, 1964, the Lovings instituted a
class action in the United States District Court for the Eastern District of
Virginia requesting that a three-judge court be convened to declare the Virginia
antimiscegenation statutes unconstitutional and to enjoin state officials from
enforcing their convictions. On January 22, 1965, the state trial judge denied
the motion to vacate the sentences, and the Lovings perfected an appeal to the
Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge
District Court continued the case to allow the Lovings to present their
constitutional claims to the highest state court.
The Supreme Court of Appeals upheld the constitutionality of the

antimiscegenation statutes and, after
Page 4
modifying the sentence, affirmed the convictions.2 The Lovings appealed this
decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986,
87 S.Ct. 595, 17 L.Ed.2d 448.
The two statutes under which appellants were convicted and sentenced
are part of a comprehensive statutory scheme aimed at prohibiting and punishing
interracial marriages. The Lovings were convicted of violating § 20—58 of the
Virginia Code:
'Leaving State to evade law.—If any white person and colored person
shall go out of this State, for the purpose of being married, and with the
intention of returning, and be married out of it, and afterwards return to and
reside in it, cohabiting as man and wife, they shall be punished as provided in
§ 20—59, and the marriage shall be governed by the same law as if it had been
solemnized in this State. The fact of their cohabitation here as man and wife
shall be evidence of their marriage.'
Section 20—59, which defines the penalty for miscegenation, provides:
'Punishment for marriage.—If any white person intermarry with a

colored person, or any colored person intermarry with a white person, he shall
be guilty of a felony and shall be punished by confinement in the penitentiary
for not less than one nor more than five years.'
Other central provisions in the Virginia statutory scheme are § 20—57,

which automatically voids all marriages between 'a white person and a colored
person' without any judicial proceeding,3 and §§ 20—54 and 1—14 which,
Page 5
respectively, define 'white persons' and 'colored persons and Indians' for
purposes of the statutory prohibitions.4 The Lovings have never disputed in the
course of this litigation that Mrs. Loving is a 'colored person' or that Mr.
Loving is a 'white person' within the meanings given those terms by the Virginia
statutes.
Page 6
Virginia is now one of 16 States which prohibit and punish marriages
on the basis of racial classifications.5 Penalties for miscegenation arose as an
incident to slavery and have been common in Virginia since the colonial period.
6 The present statutory scheme dates from the adoption of the Racial Integrity
Act of 1924, passed during the period of extreme nativism which followed the end
of the First World War. The central features of this Act, and current Virginia
law, are the absolute prohibition of a 'white person' marrying other than
another 'white person,'7 a prohibition against issuing marriage licenses until
the issuing official is satisfied that
Page 7
the applicants' statements as to their race are correct,8 certificates of

'racial composition' to be kept by both local and state registrars,9 and the
carrying forward of earlier prohibitions against racial intermarriage.10
I.
In upholding the constitutionality of these provisions in the decision

below, the Supreme Court of Appeals of Virginia referred to its 1955 decision
Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the
validity of these laws. In Naim, the state court concluded that the State's
legitimate purposes were 'to preserve the racial integrity of its citizens,' and
to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the
obliteration of racial pride,' obviously an endorsement of the doctrine of White
Supremacy. Id., at 90, 87 S.E.2d, at 756. The court also reasoned that marriage
has traditionally been subject to state regulation without federal intervention,
and, consequently, the regulation of marriage should be left to exclusive state
control by the Tenth Amendment.
While the state court is no doubt correct in asserting that marriage

is a social relation subject to the State's police power, Maynard v. Hill, 125
U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the State does not contend in its
argument before this Court that its powers to regulate marriage are unlimited
notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in
light of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042
(1923), and Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed.
1655 (1942). Instead, the State argues that the meaning of the Equal Protection
Clause, as illuminated by the statements of the Framers, is only that state
penal laws containing an interracial element
Page 8
as part of the definition of the offense must apply equally to whites and
Negroes in the sense that members of each race are punished to the same degree.
Thus, the State contends that, because its miscegenation statutes punish equally
both the white and the Negro participants in an interracial marriage, these
statutes, despite their reliance on racial classifications do not constitute an
invidious discrimination based upon race. The second argument advanced by the
State assumes the validity of its equal application theory. The argument is
that, if the Equal Protection Clause does not outlaw miscegenation statutes
because of their reliance on racial classifications, the question of
constitutionality would thus become whether there was any rational basis for a
State to treat interracial marriages differently from other marriages. On this
question, the State argues, the scientific evidence is substantially in doubt
and, consequently, this Court should defer to the wisdom of the state
legislature in adopting its policy of discouraging interracial marriages.
Because we reject the notion that the mere 'equal application' of a

statute containing racial classifications is enough to remove the
classifications from the Fourteenth Amendment's proscription of all invidious
racial discriminations, we do not accept the State's contention that these
statutes should be upheld if there is any possible basis for concluding that
they serve a rational purpose. The mere fact of equal application does not mean
that our analysis of these statutes should follow the approach we have taken in
cases involving no racial discrimination where the Equal Protection Clause has
been arrayed against a statute discriminating between the kinds of advertising
which may be displayed on trucks New York City, Railway Express Agency, Inc. v.
People of State of New York, 336 U.S. 106, 6 § .Ct. 463, 93 L.Ed. 533 (1949), or
an exemption in Ohio's ad valorem tax for merchandise owned by a non-resident in
a storage warehouse, Allied Stores of Ohio,
Page 9
Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959). In these
cases, involving distinctions not drawn according to race, the Court has merely
asked whether there is any rational foundation for the discriminations, and has
deferred to the wisdom of the state legislatures. In the case at bar, however,
we deal with statutes containing racial classifications, and the fact of equal
application does not immunize the statute from the very heavy burden of
justification which the Fourteenth Amendment has traditionally required of state
statutes drawn according to race.
The State argues that statements in the Thirty-ninth Congress about

the time of the passage of the Fourteenth Amendment indicate that the Framers
did not intend the Amendment to make unconstitutional state miscegenation laws.
Many of the statements alluded to by the State concern the debates over the
Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act
of 1866, 14 Stat. 27, enacted over his veto. While these statements have some
relevance to the intention of Congress in submitting the Fourteenth Amendment,
it must be understood that the pertained to the passage of specific statutes and
not to the broader, organic purpose of a constitutional amendment. As for the
various statements directly concerning the Fourteenth Amendment, we have said in
connection with a related problem, that although these historical sources 'cast
some light' they are not sufficient to resolve the problem; '(a)t best, they are
inconclusive. The most avid proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among 'all persons born or
naturalized in the United States.' Their opponents, just as certainly, were
antagonistic to both the letter and the spirit of the Amendments and wished them
to have the most limited effect.' Brown v. Board of Education of Topeka, 347
U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). See also Strauder
Page 10
v. State of West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). We have
rejected the proposition that the debates in the Thirty-ninth Congress or in the
state legislatures which ratified the Fourteenth Amendment supported the theory
advanced by the State, that the requirement of equal protection of the laws is
satisfied by penal laws defining offenses based on racial classifications so
long as white and Negro participants in the offense were similarly punished.
McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222
(1964).
The State finds support for its 'equal application' theory in the
decision of the Court in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27
L.Ed. 207 (1883). In that case, the Court upheld a conviction under an Alabama
statute forbidding adultery or fornication between a white person and a Negro
which imposed a greater penalty than that of a statute proscribing similar
conduct by members of the same race. The Court reasoned that the statute could
not be said to discriminate against Negroes because the punishment for each
participant in the offense was the same. However, as recently as the 1964 Term,
in rejecting the reasoning of that case, we stated 'Pace represents a limited
view of the Equal Protection Clause which has not withstood analysis in the
subsequent decisions of this Court.' McLaughlin v. Florida, supra, 379 U.S. at
188, 85 S.Ct. at 286. As we there demonstrated, the Equal Protection Clause
requires the consideration of whether the classifications drawn by any statute
constitute an arbitrary and invidious discrimination. The clear and central
purpose of the Fourteenth Amendment was to eliminate all official state sources
of invidious racial discrimination in the States. Slaughter-House Cases, 16
Wall. 36, 71, 21 L.Ed. 394 (1873); Strauder v. State of West Virginia, 100 U.S.
303, 307—308 2 5 L.Ed. 664 (1880); Ex parte Virginia, 100 U.S. 339, 344—345, 26
L.Ed. 676 (1880); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161
(1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45 (1961).
Page 11
There can be no question but that Virginia's miscegenation statutes

rest solely upon distinctions drawn according to race. The statutes proscribe
generally accepted conduct if engaged in by members of different races. Over the
years, this Court has consistently repudiated '(d)istinctions between citizens
solely because of their ancestry' as being 'odious to a free people whose
institutions are founded upon the doctrine of equality.' Hirabayashi v. United
States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very
least, the Equal Protection Clause demands that racial classifications,
especially suspect in criminal statutes, be subjected to the 'most rigid
scrutiny,' Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89
L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be
necessary to the accomplishment of some permissible state objective, independent
of the racial discrimination which it was the object of the Fourteenth Amendment
to eliminate. Indeed, two members of this Court have already stated that they
'cannot conceive of a valid legislative purpose * * * which makes the color of a
person's skin the test of whether his conduct is a criminal offense.' McLaughlin
v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart, J., joined by
Douglas, J., concurring).
There is patently no legitimate overriding purpose independent of

invidious racial discrimination which justifies this classification. The fact
that Virginia prohibits only interracial marriages involving white persons
demonstrates that the racial classifications must stand on their own
justification, as measures designed to maintain White Supremacy.11 We have
consistently denied
Page 12
the constitutionality of measures which restrict the rights of citizens on

account of race. There can be no doubt that restricting the freedom to marry
solely because of racial classifications violates the central meaning of the
Equal Protection Clause.
II.
These statutes also deprive the Lovings of liberty without due process
of law in violation of the Due Process Clause of the Fourteenth Amendment. The
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.
Marriage is one of the 'basic civil rights of man,' fundamental to our

very existence and survival. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62
S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). Maynard v. Hill, 125 U.S. 190, 8 S.Ct.
723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these statutes, classifications
so directly subversive of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all the State's citizens of liberty
without due process of law. The Fourteenth Amendment requires that the freedom
of choice to marry not be restricted by invidious racial discriminations. Under
our Constitution, the freedom to marry or not marry, a person of another race
resides with the individual and cannot be infringed by the State.
These convictions must be reversed. It is so ordered.
Reversed.
Page 13
Mr. Justice STEWART, concurring.
I have previously expressed the belief that 'it is simply not possible
for a state law to be valid under our Constitution which makes the criminality
of an act depend upon the race of the actor.' McLaughlin v. State of Florida,
379 U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d 222 (concurring opinion).
Because I adhere to that belief, I concur in the judgment of the Court.
1. Section 1 of the Fourteenth Amendment provides:
'All persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.'
2. 206 Va. 924, 147 S.E.2d 78 (1966).
3. Section 20—57 of the Virginia Code provides:
'Marriages void without decree.—All marriages between a white person and a

colored person shall be absolutely void without any decree of divorce or other
legal process.' Va.Code Ann. § 20—57 (1960 Repl.Vol.).
4. Sectin 20—54 of the Virginia Code provides:
'Intermarriage prohibited; meaning of term 'white persons.' It shall hereafter

be unlawful for any white person in this State to marry any save a white person,
or a person with no other admixture of blood than white and American Indian. For
Luther: The Estate of Marriage. Page 1 of 15
09.13 Martin Luther. The Estate of Marriage, 1522. (Translated by Walther I. Brandt).
How I dread preaching on the estate of marriage! I am reluctant to do it because I am afraid if I once get
really involved in the subject it will make a lot of work for me and for others. The shameful confusion
wrought by the accursed papal law has occasioned so much distress, and the lax authority of both the
spiritual and the temporal swords has given rise to so many dreadful abuses and false situations, that I
would much prefer neither to look into the matter nor to hear of it. But timidity is no help in an
emergency; I must proceed. I must try to instruct poor bewildered consciences, and take up the matter
boldly. This sermon is divided into three parts.
Part One
In the first part we shall consider which persons may enter into marriage with one another. In order to
proceed aright let us direct our attention to Genesis 1 [:27], "So God created man… male and female he
created them." From this passage we may be assured that God divided mankind into two classes,
namely, male and female, or a he and a she. This was so pleasing to him that he himself called it a good
creation [Gen. 1:81]. Therefore, each one of us must have the kind of body God has created for us. I
cannot make myself a woman, nor can you make yourself a man; we do not have that power. But we are
exactly as he created us: I a man and you a woman. Moreover, he wills to have his excellent handiwork
honoured as his divine creation, and not despised. The man is not to despise or scoff at the woman or her
body, nor the woman the man. But each should honour the other's image and body as a divine and good
creation that is well-pleasing unto God himself.
In the second place, after God had made man and woman he blessed them and said to them, "Be fruitful
and multiply" [Gen. 1:28]. From this passage we may be assured that man and woman should and must
come together in order to multiply. Now this [ordinance] is just as inflexible as the first, and no more to
be despised and made fun of than the other, since God gives it his blessing and does something over and
above the act of creation. Hence, as it is not within my power not to be a man, so it is not my prerogative
to be without a woman. Again, as it is not in your power not to be a woman, so it is not your prerogative
to be without a man. For it is not a matter of free choice or decision but a natural and necessary thing,
that whatever is a man must have a woman and whatever is a woman must have a man.
For this word which God speaks, "Be fruitful and multiply," is not a command. It is more than a
command, namely, a divine ordinance [werck] which it is not our prerogative to hinder or ignore.
Rather, it is just as necessary as the fact that I am a man, and more necessary than sleeping and waking,
eating and drinking, and emptying the bowels and bladder. It is a nature and disposition just as innate as
the organs involved in it Therefore, just as God does not command anyone to be a man or a woman but
creates them the way they have to be, so he does not command them to multiply but creates them so that
they have to multiply. And wherever men try to resist this, it remains irresistible nonetheless and goes its
way through fornication, adultery, and secret sins, for this is a matter of nature and not of choice.
In the third place, from this ordinance of creation God has himself exempted three categories of men,
saying in Matthew 19 [:12], "There are eunuchs who have been so from birth, and there are eunuchs who
have been made eunuchs by men, and there are eunuchs who have made themselves eunuchs for the
sake of the kingdom of heaven." Apart from these three groups, let no man presume to be without a
spouse. And whoever does not fall within one of these three categories should not consider anything
except the estate of marriage. Otherwise it is simply impossible for you to remain righteous. For the
Word of God which created you and said, "Be fruitful and multiply," abides and rules within you; you
can by no means ignore it, or you will be bound to commit heinous sins without end.
mhtml:file://E:\PROJECTS\Zehren, John\marriage\MartinLuther-Estate-of-Marriage.mht 10/31/2010

Don't let yourself be fooled on this score, even if you should make ten oaths, vows, covenants, and
adamantine or ironclad pledges. For as you cannot solemnly promise that you will not be a man or a
woman (and if you should make such a promise it would be foolishness and of no avail since you cannot
make yourself something other than what you are), so you cannot promise that you will not produce seed
or multiply, unless you belong to one of the three categories mentioned above. And should you make
such a promise, it too would be foolishness and of no avail, for to produce seed and to multiply is a
matter of God's ordinance [geschöpffe], not your power.
From this you can now see the extent of the validity of all cloister vows. No vow of any youth or maiden
is valid before God, except that of a person in one of the three categories which God alone has himself
excepted. Therefore, priests, monks, and nuns are duty-bound to forsake their vows whenever they find
that God's ordinance to produce seed and to multiply is powerful and strong within them. They have no
power by any authority, law, command, or vow to hinder this which God has created within them. If
they do hinder it, however, you may be sure that they will not remain pure but inevitably besmirch
themselves with secret sins or fornication. For they are simply incapable of resisting the word and
ordinance of God within them. Matters will take their course as God has ordained.
As to the first category, which Christ calls "eunuchs who have been so from birth," these are the ones
whom men call impotent, who are by nature not equipped to produce seed and multiply because they are
physically frigid or weak or have some other bodily deficiency which makes them unfit for the estate of
marriage. Such cases occur among both men and women. These we need not take into account, for God
has himself exempted them and so formed them that the blessing of being able to multiply has not come
to them. The injunction, "Be fruitful and multiply," does not apply to them; just as when God creates a
person crippled or blind, that person is not obligated to walk or see, because he cannot.
I once wrote down some advice concerning such persons for those who hear confession. It related to
those cases where a husband or wife comes and wants to learn what he should do: his spouse is unable to
fulfil the conjugal duty, yet he cannot get along without it because he finds that God's ordinance to
multiply is still in force within him. Here they have accused me of teaching that when a husband is
unable to satisfy his wife's sexual desire she should run to somebody else. Let the topsy-turvy liars
spread their lies. The words of Christ and his apostles were turned upside down; should they not also
turn my words topsy-turvy? To whose detriment it will be they shall surely find out.
What I said was this: if a woman who is fit for marriage has a husband who is not, and she is unable
openly to take unto herself another and unwilling, too, to do anything dishonourable since the pope in
such a case demands without cause abundant testimony and evidence, she should say to her husband,
"Look, my dear husband, you are unable to fulfil your conjugal duty toward me; you have cheated me
out of my maidenhood and even imperilled my honour and my soul's salvation; in the sight of God there
is no real marriage between us. Grant me the privilege of contracting a secret marriage with your brother
or closest relative, and you retain the title of husband so that your property will not fall to strangers.
Consent to being betrayed voluntarily by me, as you have betrayed me without my consent".
I stated further that the husband is obligated to consent to such an arrangement and thus to provide for
her the conjugal duty and children, and that if he refuses to do so she should secretly flee from him to
some other country and there contract a marriage. I gave this advice at a time when I was still timid.
However, I should like now to give sounder advice in the matter, and take a firmer grip on the wool of a
man who thus makes a fool of his wife. The same principle would apply if the circumstances were
reversed, although this happens less frequently in the case of wives than of husbands. It will not do to
lead one's fellow-man around by the nose so wantonly in matters of such great import involving his
body, goods, honour, and salvation. He has to be told to make it right.

The second category, those who Christ says "'1ave been made eunuchs by men" [Matt. 19:12], the
castrates, are an unhappy lot, for though they are not equipped for marriage, they are nevertheless not
free from evil desire'. They seek the company of women more than before and are quite effeminate. It is
with them as the proverb says, "He who cannot sing always insists upon singing". Thus, they are
plagued with a desire for women, but are unable to consummate their desire. Let us pass them by also;
for they too are set apart from the natural ordinance to be fruitful and multiply, though only by an act of
violence.
The third category consists of those spiritually rich and exalted persons, bridled by the grace of God,
who are equipped for marriage by nature and physical capacity and nevertheless voluntarily remain
celibate. These put it this way, "I could marry if I wish, I am capable of it But it does not attract me. I
would rather work on the kingdom of heaven, i.e., the gospel, and beget spiritual children." Such
persons are rare, not one in a thousand, for they are a special miracle of God. No one should venture on
such a life unless he be especially called by God, like Jeremiah [16:2], or unless he finds God's grace to
be so powerful within him that the divine injunction, "Be fruitful and multiply," has no place in him.
Beyond these three categories, however, the devil working through men has been smarter than God, and
found more people whom he has withdrawn from the divine and natural ordinance, namely, those who
are enmeshed in a spiderweb of human commands and vows and are then locked up behind a mass of
iron bolts and bars. This is a fourth way of resisting nature so that, contrary to God's implanted
ordinance and disposition, it does not produce seed and multiply, as if it were within our power and
discretion to posses virginity as we do shoes and clothing! If men are really able to resist God's word
and creation with iron bars and bolts, I should hope that we would also set up iron bars so thick and
massive that women would turn into men or people into sticks and stones. It is the devil who thus
perpetrates his monkey-tricks on the poor creature, and so gives vent to his wrath.
In the fourth place, let us now consider which persons may enter into marriage with one another, so that
you may see it is not my pleasure or desire that a marriage be broken and husband and wife separated.
The pope in his canon law has thought up eighteen distinct reasons for preventing or dissolving a
marriage, nearly all of which I reject and condemn. Indeed, the pope himself does not adhere to them so
strictly or firmly but what one can rescind any of them with gold and silver. Actually, they were only
invented in order to be a net for gold and a noose for the soul, II Peter 2 [:14]. In order to expose their
folly we will take a look at all eighteen of them in turn.
The first impediment is blood relationship. Here they have forbidden marriage up to the third and fourth
degrees of consanguinity. If in this situation you have no money, then even though God freely permits it
you must nevertheless not take in marriage your female relative within the third and fourth degrees, or
you must put her away if you have already married her. But if you have the money, such a marriage is
permitted. Those hucksters offer for sale women who never have been their own. So that you can defend
yourself against this tyranny, I will now list for you the persons whom God has forbidden, Leviticus 18
[:6-13], namely, my mother, my stepmother; my sister, my stepsister; my child's daughter or
stepdaughter; my father's sister; my mother's sister. I am forbidden to marry any of these persons.
From this it follows that first cousins may contract a godly and Christian marriage, and that I may marry
my stepmother's sister, my father's stepsister, or my mother's stepsister. Further, I may marry the
daughter of my brother or sister, just as Abraham married Sarah. None of these persons is forbidden by
God, for God does not calculate according to degrees, as the jurists do, but enumerates directly specific
persons. Otherwise, since my father's sister and my brother's daughter are related to me in the same
degree, I would have to say either that I cannot marry my brother's daughter or that I may also marry my
father's sister. Now God has forbidden my father's sister, but he has not forbidden my brother's daughter,

although both are related to me in the same degree. We also find in Scripture that with respect to various
stepsisters there were not such strict prohibitions. For Tamar, Absalom's sister, thought she could have
married her step-brother Amnon, II Samuel 13 [:13].
The second impediment is affinity or relationship through marriage. Here too they have set up four
degrees, so that after my wife's death I may not marry into her blood relationship, where my marriage
extends up to the third and fourth degrees, unless money comes to my rescue! But God has forbidden
only these persons, namely, my father's brother's wife; my son's wife; my brother's wife; my
stepdaughter; the child of my stepson or stepdaughter; my wife's sister while my wife is yet alive [Lev.
18:14-18]. I may not marry any of these persons; but I may marry any others, and without putting up any
money for the privilege. For example, may marry the sister of my deceased wife or fiancée; the daughter
of my wife's brother; the daughter of my wife's cousin; and any of my wife's nieces, aunts, or cousins. In
the Old Testament, if a brother died without leaving an heir, his widow was required to marry his closest
relative in order to provide her deceased husband with an heir [Deut 25:5-9]. This is no longer
commanded, but neither is it forbidden.
The third impediment is spiritual relationship. If I sponsor a girl at baptism or confirmation, then neither
I nor my son may marry her, or her mother, or her sister, unless an appropriate and substantial sum of
money is forthcoming! This is nothing but pure farce and foolishness, concocted for the sake of money
and to befuddle consciences. Just tell me this: isn't it a greater thing for me to be baptised myself than
merely to act as sponsor to another? Then I must be forbidden to marry any Christian woman, since all
baptised women are the spiritual sisters of all baptised men by virtue of their common baptism,
sacrament, faith, Spirit, Lord, God, and eternal heritage [Eph. 4:4-6].
Why does not the pope also forbid a man to retain his wife if he teaches her the gospel? For whoever
teaches another becomes that person's spiritual father. St. Paul boasts in I Corinthians 4 [:15] that he is
the father of all of them, saying, "I became your father in Christ Jesus through the gospel." According to
this he could not have taken a wife in Corinth; neither could any apostle in the whole world have taken a
wife from among those whom he taught and baptised.
So away with this foolishness; take as your spouse whomsoever you please, whether it be godparent,
godchild, or the daughter or sister of a sponsor, or whoever it may be, and disregard these artificial,
money-seeking impediments. If you are not prevented from marrying a girl by the fact that she is a
Christian, then do not let yourself be prevented by the fact that you baptised her, taught her, or acted as
her sponsor. In particular, avoid that monkey business, confirmation, which is really a fanciful
deception. I would permit confirmation as long as it is understood that God knows nothing of it, and has
said nothing about it, and that what the bishops claim for it is untrue. They mock our God when they say
that it is one of God's sacraments, for it is a purely human contrivance.
The fourth impediment is legal kinship; that is, when an unrelated child is adopted as son or daughter it
may not later marry a child born of its adoptive parents, that is, one who is by law its own brother or
sister. This is another worthless human invention. Therefore, if you so desire, go ahead and marry
anyway. In the sight of God this adopted person is neither your mother nor your sister, since there is no
blood relationship. She does work in the kitchen, however, and supplements the income; this is why she
has been placed on the forbidden list!
The fifth impediment is unbelief; that is, I may not marry a Turk, a Jew, or a heretic. I marvel that the
blasphemous tyrants are not in their hearts ashamed to place themselves in such direct contradiction to
the clear text of Paul in I Corinthians 7 [:12-13], where he says, "If a heathen wife or husband consents
to live with a Christian spouse, the Christian should not get a divorce." And St. Peter, in I Peter 3 [:1],
says that Christian wives should behave so well that they thereby convert their non-Christian husbands;

as did Monica, the mother of St. Augustine.
Know therefore that marriage is an outward, bodily thing, like any other worldly undertaking. Just as I
may eat, drink, sleep, walk, ride with, buy from, speak to, and deal with a heathen, Jew, Turk, or heretic,
so I may also marry and continue in wedlock with him. Pay no attention to the precepts of those fools
who forbid it. You will find plenty of Christians, and indeed the greater part of them, who are worse in
their secret unbelief than any Jew, heathen, Turk, or heretic. A heathen is just as much a man or a
woman-God's good creation-as St. Peter, St. Paul, and St. Lucy, not to speak of a slack and spurious
Christian.
The sixth impediment is crime. They are not in agreement as to how many instances of this impediment
they should devise. However, there are actually these three: if someone lies with a girl, he may not
thereafter marry her sister or her aunt, niece, or cousin; again, whoever commits adultery with a woman
may not marry her after her husband's death; again, if a wife (or husband) should murder her spouse for
love of another, she may not subsequently marry the loved one. Here it rains fools upon fools. Don't you
believe them, and don't be taken in by them; they are under the devil's whip. Sins and crimes should be
punished, but with other penalties, not by forbidding marriage. Therefore, no sin or crime is an
impediment to marriage. David committed adultery with Bathsheba, Uriah's wife, and had her husband
killed besides. He was guilty of both crimes; still he took her to wife and begot King Solomon by her [II
Samuel 11], and without giving any money to the pope!
I must pursue this subject a bit further. These wise guys posit the hypothetical case of a man who sins
with his wife's mother or sister. Had this happened before the marriage it would have been a crime
which would prevent and break up the proposed marriage. Since it happened subsequent to the marriage,
however, for the sake of the wife, who is innocent in the matter, the marriage may not be dissolved.
Nevertheless, the husband's punishment is to be that he shall lie with his wife but have no power to
demand of her the conjugal duty. See what the devil through his fools does with the estate of marriage!
He puts husband and wife together, and then says, "Be neither man nor woman." As well put fire and
straw together and bid them not to burn. If one were to impose upon the pope a command one-tenth as
hard as this, how he would rage and storm, and howl about unlawful authority! Away with the big fools.
You just let marriage remain free, as God instituted it. Punish sins and crimes with other penalties, not
through marriage and fresh sins.
The seventh impediment they call public decorum, respectability. For example, if my fiancée should die
before we consummate the marriage, I may not marry any relative of hers up to the fourth degree, since
the pope thinks and obviously dreams that it is decent and respectable for me to refrain from so doing,
unless I put up the money, in which case the impediment of public decorum vanishes. Now you have
heard a moment ago that after my wife's death I may marry her sister or any of her relatives except for
her mother and her daughter. You stick to this, and let the fools go their way.
The eighth impediment is a solemn vow, for example where someone has taken the vow of chastity,
either in or out of the cloister. Here I offer this advice: if you would like to take a wise vow, then vow
not to bite off your own nose; you can keep that vow. If you have already taken the monastic vow,
however, then, as you have just heard, you should yourself consider whether you belong in those three
categories which God has singled out. If you do not feel that you belong there, then let the vows and the
cloister go. Renew your natural companionships without delay and get married, for your vow is contrary
to God and has no validity, and say, "I have promised that which I do not have and which is not mine."
The ninth impediment is error, as if I had been wed to Catherine but Barbara lay down with me, as
happened to Jacob with Leah and Rachel [Gen. 29:23-25]. One may have such a marriage dissolved and
take the other to wife.

The tenth impediment is condition of servitude. When I marry one who is supposed to be free and it
turns out later that she is a serf, this marriage too is null and void. However, I hold that if there were
Christian love the husband could easily adjust both of these impediments so that no great distress would
be occasioned. Furthermore, such cases never occur today, or only rarely, and both might well be
combined in one category: error.
The eleventh impediment is holy orders, namely, that the tonsure and sacred oil are so potent that they
devour marriage and unsex a man. For this reason a subdeacon, a deacon, and a priest have to forego
marriage, although St. Paul commanded that they may and should be married, II Timothy 3 [I Tim. 3:2,
12], Titus 1 [:6]. But I have elsewhere written so much about this, that there is no need to repeat it here.
Their folly has been sufficiently exposed; how much help this impediment has been to those in holy
orders is obvious to all.
The twelfth impediment is coercion, that is, when I have to take Grete to be my wife and am coerced
into it either by parents or by governmental authority. That is to be sure no marriage in the sight of God.
However, such a person should not admit the coercion and leave the country on account of it, thus
betraying the girl or making a fool of her, for you are not excused by the fact that you were coerced into
it You should not allow yourself to be coerced into injuring your neighbour but should yield your life
rather than act contrary to love. You would not want anybody to injure you, whether he was acting under
coercion or not. For this reason I could not declare safe in the sight of God a man who leaves his wife
for such a cause. My dear fellow, if someone should compel you to rob me or kill me, would it therefore
be right? Why do you yield to a coercion which compels you to violate God's commandment and harm
your neighbour? I would freely absolve the girl however, for, as we will hear later, you would be leaving
her through no fault of her own.
The thirteenth impediment is betrothal, that is, if I am engaged to one girl but then take another to wife.
This is a widespread and common practice in which many different solutions have also been attempted.
In the first place, if such an engagement occurs without the knowledge and consent of the father and
mother, or of the guardians, then let the (fiancée's) father decide which girl is to remain as the wife. If
she is betrayed it is her own fault, for she should know that a child is supposed to be subordinate and
obedient to its father, and not become engaged without his knowledge. In this way, obedience to
parental authority will put a stop to all these secret engagements which occasion such great unhappiness.
where this course is not followed, however, I am of the opinion that the man should stick to the first girl.
For having given himself to her he no longer belongs to himself. He was therefore incapable of
promising to the second girl something that already belonged to the first and was not his own.
If he does so nonetheless and carries on to the point where he begets children by her, then he should
stick with her. For she too has been betrayed, and would suffer even greater injury than the first girl
were he to leave her. He has therefore sinned against them both. The first girl; however, is able to
recover from the injury done her because she is yet without children. She should therefore out of love
yield to the second girl and marry someone else; she is free from the man because he jilted her and gave
himself to another. The man himself though should be made to suffer punishment and make amends to
the first girl, for what he gave away really belonged to her.
The fourteenth impediment is the one touched on already, when a husband or wife is unfit for marriage.
Among these eighteen impediments this one is the only sound reason for dissolving a marriage. Yet it is
hedged about by so many laws that it is difficult to accomplish with the ecclesiastical tyrants.
There are still four more impediments, such as Episcopal prohibition, restricted times, custom, and
defective eyesight and hearing. It is needless to discuss them here. It is a dirty rotten business that a
bishop should forbid me a wife or specify the times when I may marry, or that a blind and dumb person

should not be allowed to enter into wedlock. So much then for this foolishness at present in the first part.
Part Two
In the second part, we shall consider which persons may be divorced. I know of three grounds for
divorce. The first, which has just been mentioned and was discussed above, is the situation in which the
husband or wife is not equipped for marriage because of bodily or natural deficiencies of any sort. Of
this enough has already been said.
The second ground is adultery. The popes have kept silent about this; therefore we must hear Christ,
Matthew 19 [:3-9]. when the Jews asked him whether a husband might divorce his wife for any reason,
he answered, "'Have you not read that he who made them from the beginning made them male and
female, and said, "For this reason a man shall leave his father and mother and be joined to his wife, and
the two shall become one"? what therefore God has joined together, let no man put asunder.' They said
to him, ‘Why then did Moses command one to give a certificate of divorce, and to put her away?' He
said to them, 'For your hardness of heart Moses allowed you to divorce your wives, but from the
beginning it was not so. And I say to you: whoever divorces his wife, except for unchastity, and marries
another, commits adultery; and he who marries a divorced woman commits adultery.’"
Here you see that in the case of adultery Christ permits the divorce of husband and wife, so that the
innocent person may remarry. For in saying that he commits adultery who marries another after
divorcing his wife, "except for unchastity," Christ is making it quite clear that he who divorces his wife
on account of unchastity and then marries another does not commit adultery.
The Jews, however, were divorcing their wives for all kinds of reasons whenever they saw fit, even
though no unchastity was involved. That covers so much ground that they themselves thought it was
going too far. They therefore inquired of Christ whether it was right; they were tempting him to see what
he would say concerning the law of Moses.
Now in the law of Moses God established two types of governments; he gave two types of
commandments. Some are spiritual, teaching righteousness in the sight of God, such as love and
obedience; people who obeyed these commandments did not thrust away their wives and never made
use of certificates of divorce, but tolerated and endured their wives' conduct. Others are worldly,
however, drawn up for the sake of those who do not live up to the spiritual commandments, in order to
place a limit upon their misbehaviour and prevent them from doing worse and acting wholly on the basis
of their own maliciousness. Accordingly, he commanded them, if they could not endure their wives, that
they should not put them to death or harm them too severely, but rather dismiss them with a certificate
of divorce. This law, therefore, does not apply to Christians, who are supposed to live in the spiritual
government. In the case of some who live with their wives in an un-Christian fashion, however, it would
still be a good thing to permit them to use this law, just so they are no longer regarded as Christians,
which after all they really are not.
Thus it is that on the grounds of adultery one person may leave the other, as Solomon also says in
Proverbs 18, "He that keepeth an adulteress is a fool". We have an example of this in Joseph too. In
Matthew 1 [:19] the gospel writer praises him as just because he did not put his wife to shame when he
found that she was with child, but was minded to divorce her quietly. By this we are told plainly enough
that it is praiseworthy to divorce an adulterous wife. If the adultery is clandestine, of course, the husband
has the right to follow either of two courses. First, he may rebuke his wife privately and in a brotherly
fashion, and keep her if she will mend her ways. Second, he may divorce her, as Joseph wished to do.
The same principle applies in the case of a wife with an adulterous husband. These two types of
discipline are both Christian and laudable.

But a public divorce, whereby one [the innocent party) is enabled to remarry, must take place through
the investigation and decision of the civil authority so that the adultery may be manifest to all - or, if the
civil authority refuses to act, with the knowledge of the congregation, again in order that it may not be
left to each one to allege anything he pleases as a ground for divorce.
You may ask: What is to become of the other [the guilty party] if he too is perhaps unable to lead a
chaste life? Answer: It was for this reason that God commanded in the law [Deut. 22: 22-24] that
adulterers be stoned, that they might not have to face this question. The temporal sword and government
should therefore still put adulterers to death, for whoever commits adultery has in fact himself already
departed and is considered as one dead. Therefore, the other [the innocent party] may remarry just as
though his spouse had died, if it is his intention to insist on his rights and not show mercy to the guilty
party. Where the government is negligent and lax, however, and fails to inflict the death penalty, the
adulterer may betake himself to a far country and there remarry if he is unable to remain continent. But
it would be better to put him to death, lest a bad example be set.
Some may find fault with this solution and contend that thereby license and opportunity is afforded all
wicked husbands and wives to desert their spouses and remarry in a foreign country. Answer: Can I help
it? The blame rests with the government. Why do they not put adulterers to death? Then I would not
need to give such advice. Between two evils one is always the lesser, in this case allowing the adulterer
to remarry in a distant land in order to avoid fornication. And I think he would be safer also in the sight
of God, because he has been allowed to live and yet is unable to remain continent. If others also,
however, following this example desert their spouses, let them go. They have no excuse such as the
adulterer has, for they are neither driven nor compelled. God and their own conscience will catch up to
them in due time. Who can prevent all wickedness?
Where the government fails to inflict the death penalty and the one spouse wishes to retain the other, the
guilty one should still in Christian fashion be publicly rebuked and caused to make amends according to
the gospel, after the manner provided for the rebuking of all other manifest sins, Matthew 18 [:15-17].
For there are no more than these three forms of discipline on earth among men: private and brotherly, in
public before the congregation according to the gospel, and that inflicted by the civil government.
The third case for divorce is that in which one of the parties deprives and avoids the other, refusing to
fulfil the conjugal duty or to live with the other person. For example, one finds many a stubborn wife
like that who will not give in, and who cares not a whit whether her husband falls into the sin of
unchastity ten times over. Here it is time for the husband to say, "If you will not, another will; the maid
will come if the wife will not." Only first the husband should admonish and warn his wife two or three
times, and let the situation be known to others so that her stubbornness becomes a matter of common
knowledge and is rebuked before the congregation. If she still refuses, get rid of her; take an Esther and
let Vashti go, as King Ahasuerus did [Esther 1:1 :17].
Here you should be guided by the words of St. Paul, I Corinthians 7 [:4-5], "The husband does not rule
over his own body, but the wife does; likewise the wife does not rule over her own body, but the
husband does. Do not deprive each other, except by agreement," etc. Notice that St. Paul forbids either
party to deprive the other, for by the marriage vow each submits his body to the other in conjugal duty.
When one resists the other and refuses the conjugal duty she is robbing the other of the body she had
bestowed upon him. This is really contrary to marriage, and dissolves the marriage. For this reason the
civil government must compel the wife, or put her to death. If the government fails to act, the husband
must reason that his wife has been stolen away and slain by robbers; he must seek another. We would
certainly have to accept it if someone's life were taken from him. Why then should we not also accept it
if a wife steals herself away from her husband, or is stolen away by others?

In addition to these three grounds for divorce there is one more which would justify the sundering of
husband and wife, but only in such a way that they must both refrain from remarrying or else become
reconciled. This is the case where husband and wife cannot get along together for some reason other
than the matter of the conjugal duty. St. Paul speaks of this in I Corinthians 7 [:10-11], "Not I but the
Lord gives charge to the married that the wife should not separate from her husband. But if she does, let
her remain single, or else be reconciled to her husband. Likewise, the husband should not divorce his
wife." Solomon complains much in the Proverbs about such wives, and says he has found a woman
more bitter than death [Eccles. 7:26]. One may also find a rude, brutal, and unbearable husband.
Now if one of the parties were endowed with Christian fortitude and could endure the other's ill
behaviour, that would doubtless be a wonderfully blessed cross and a right way to heaven. For an evil
spouse, in a manner of speaking, fulfils the devil's function and sweeps clean him who is able to
recognise and bear it. If he cannot, however, let him divorce her before he does anything worse, and
remain unmarried for the rest of his days. Should he try to say that the blame rests not upon him but
upon his spouse, and therefore try to marry another, this will not do, for he is under obligation to endure
evil, or to be released from his cross only by God, since the conjugal duty has not been denied him. Here
the proverb applies, "He who wants a fire must endure the smoke."
What about a situation where one's wife is an invalid and has therefore become incapable of fulfilling
the conjugal duty? May he not take another to wife? By no means. Let him serve the Lord in the person
of the invalid and await His good pleasure. Consider that in this invalid God has provided your
household with a healing balm by which you are to gain heaven. Blessed and twice blessed are you
when you recognise such a gift of grace and therefore serve your invalid wife for God's sake.
But you may say: I am unable to remain continent. That is a lie. If you will earnestly serve your invalid
wife, recognise that God has placed this burden upon you, and give thanks to him, then you may leave
matters in his care. He will surely grant you grace, that you will not have to bear more than you are able.
He is far too faithful to deprive you of your wife through illness without at the same time subduing your
carnal desire, if you will but faithfully serve your invalid wife.
Part Three.
In the third part, in order that we may say something about the estate of marriage which will be
conducive toward the soul's salvation, we shall now consider how to live a Christian and godly life in
that estate. I will pass over in silence the matter of the conjugal duty, the granting and the withholding of
it, since some filth-preachers have been shameless enough in this matter to rouse our disgust. Some of
them designate special times for this, and exclude holy nights and women who are pregnant. I will leave
this as St. Paul left it when he said in I Corinthians 7 [:9], "It is better to marry than to burn"; and again
[in v.2], "To avoid immorality, each man should have his own wife, and each woman her own husband."
Although Christian married folk should not permit themselves to be governed by their bodies in the
passion of lust, as Paul writes to the Thessalonians [I Thess. 4:5], nevertheless each one must examine
himself so that by his abstention he does not expose himself to the danger of fornication and other sins.
Neither should he pay any attention to holy days or work days, or other physical considerations.
What we would speak most of is the fact that the estate of marriage has universally fallen into such
awful disrepute. There are many pagan books which treat of nothing but the depravity of womankind
and the unhappiness of the estate of marriage, such that some have thought that even if Wisdom itself
were a woman one should not marry. A Roman official was once supposed to encourage young men to
take wives (because the country was in need of a large population on account of its incessant wars).
Among other things he said to them, "My dear young men, if we could only live without women we
would be spared a great deal of annoyance; but since we cannot do without them, take to yourselves

wives," etc. He was criticised by some on the ground that his words were ill-considered and would only
serve to discourage the young men. Others, on the contrary, said that because Metellus was a brave man
he had spoken rightly, for an honourable man should speak the truth without fear or hypocrisy.
So they concluded that woman is a necessary evil, and that no household can be without such an evil.
These are the words of blind heathen, who are ignorant of the fact that man and woman are God's
creation. They blaspheme his work, as if man and woman just came into being spontaneously! I imagine
that if women were to write books they would say exactly the same thing about men. What they have
failed to set down in writing, however, they express with their grumbling and complaining whenever
they get together.
Every day one encounters parents who forget their former misery because, like the mouse, they have
now had their fill. They deter their children from marriage but entice them into priesthood and nunnery,
citing the trials and troubles of married life. Thus do they bring their own children home to the devil, as
we daily observe; they provide them with ease for the body and hell for the soul.
Since God had to suffer such disdain of his work from the pagans, he therefore also gave them their
reward, of which Paul writes in Romans 1 [:24-28], and allowed them to fall into immorality and a
stream of uncleanness until they henceforth carnally abused not women but boys and dumb beasts. Even
their women carnally abused themselves and each other. Because they blasphemed the work of God, he
gave them up to a base mind, of which the books of the pagans are full, most shamelessly crammed full.
In order that we may not proceed as blindly, but rather conduct ourselves in a Christian manner, hold
fast first of all to this, that man and woman are the work of God. Keep a tight rein on your heart and
your lips; do not criticise his work, or call that evil which he himself has called good. He knows better
than you yourself what is good and to your benefit, as he says in Genesis 1 [2:18], "It is not good that
the man should be alone; I will make him a helper fit for him." There you see that he calls the woman
good, a helper. If you deem it otherwise, it is certainly your own fault, you neither understand nor
believe God's word and work. See, with this statement of God one stops the mouths of all those who
criticise and censure marriage.
For this reason young men should be on their guard when they read pagan books and hear the common
complaints about marriage, lest they inhale poison. For the estate of marriage does not set well with the
devil, because it is God's good will and work. This is why the devil has contrived to have so much
shouted and written in the world against the institution of marriage, to frighten men away from this
godly life and entangle them in a web of fornication and secret sins. Indeed, it seems to me that even
Solomon, although he amply censures evil women, was speaking against just such blasphemers when he
said in Proverbs 18 [:22], "He who finds a wife finds a good thing, and obtains favour from the Lord."
What is this good thing and this favour? Let us see.
The world says of marriage, "Brief is the joy, lasting the bitterness." Let them say what they please;
what God wills and creates is bound to be a laughingstock to them. The kind of joy and pleasure they
have outside of wedlock they will be most acutely aware of, I suspect, in their consciences. To recognise
the estate of marriage is something quite different from merely being married. He who is married but
does not recognise the estate of marriage cannot continue in wedlock without bitterness, drudgery, and
anguish; he will inevitably complain and blaspheme like the pagans and blind, irrational men. But he
who recognises the estate of marriage will find therein delight, love, and joy without end; as Solomon
says, "He who finds a wife finds a good thing," etc. [Prov. 18:22].
Now the ones who recognise the estate of marriage are those who firmly believe that God himself
instituted it, brought husband and wife together, and ordained that they should beget children and care

for them. For this they have God's word, Genesis 1 [:28], and they can be certain that he does not lie.
They can therefore also be certain that the estate of marriage and everything that goes with it in the way
of conduct, works, and suffering is pleasing to God. Now tell me, how can the heart have greater good,
joy, and delight than in God, when one is certain that his estate, conduct, and work is pleasing to God?
Now observe that when that clever harlot, our natural reason (which the pagans followed in trying to be
most clever), takes a look at married life, she turns up her nose and says, "Alas, must I rock the baby,
wash its diapers, make its bed, smell its stench, stay up nights with it, take care of it when it cries, heal
its rashes and sores, and on top of that care for my wife, provide for her, labour at my trade, take care of
this and take care of that, do this and do that, endure this and endure that, and whatever else of bitterness
and drudgery married life involves? What, should I make such a prisoner of myself? 0 you poor,
wretched fellow, have you taken a wife? Fie, fie upon such wretchedness and bitterness! It is better to
remain free and lead a peaceful. carefree life; I will become a priest or a nun and compel my children to
do likewise."
What then does Christian faith say to this? It opens its eyes, looks upon all these insignificant,
distasteful, and despised duties in the Spirit, and is aware that they are all adorned with divine approval
as with the costliest gold and jewels. It says, "0 God, because I am certain that thou hast created me as a
man and hast from my body begotten this child, I also know for a certainty that it meets with thy perfect
pleasure. I confess to thee that I am not worthy to rock the little babe or wash its diapers. or to be
entrusted with the care of the child and its mother. How is it that I, without any merit, have come to this
distinction of being certain that I am serving thy creature and thy most precious will? 0 how gladly will I
do so, though the duties should be even more insignificant and despised. Neither frost nor heat, neither
drudgery nor labour, will distress or dissuade me, for I am certain that it is thus pleasing in thy sight."
A wife too should regard her duties in the same light, as she suckles the child, rocks and bathes it, and
cares for it in other ways; and as she busies herself with other duties and renders help and obedience to
her husband. These are truly golden and noble works. This is also how to comfort and encourage a
woman in the pangs of childbirth, not by repeating St Margaret legends and other silly old wives' tales
but by speaking thus, "Dear Grete, remember that you are a woman, and that this work of God in you is
pleasing to him. Trust joyfully in his will, and let him have his way with you. Work with all your might
to bring forth the child. Should it mean your death, then depart happily, for you will die in a noble deed
and in subservience to God. If you were not a woman you should now wish to be one for the sake of this
very work alone, that you might thus gloriously suffer and even die in the performance of God's work
and will. For here you have the word of God, who so created you and implanted within you this
extremity." Tell me, is not this indeed (as Solomon says [Prov. 18:22]) "to obtain favour from the Lord,"
even in the midst of such extremity?
Now you tell me, when a father goes ahead and washes diapers or performs some other mean task for his
child, and someone ridicules him as an effeminate fool, though that father is acting in the spirit just
described and in Christian faith, my dear fellow you tell me, which of the two is most keenly ridiculing
the other? God, with all his angels and creatures, is smiling, not because that father is washing diapers,
but because he is doing so in Christian faith. Those who sneer at him and see only the task but not the
faith are ridiculing God with all his creatures, as the biggest fool on earth. Indeed, they are only
ridiculing themselves; with all their cleverness they are nothing but devil's fools.
St. Cyprian, that great and admirable man and holy martyr, wrote that one should kiss the new-born
infant, even before it is baptised, in honour of the hands of God here engaged in a brand new deed. What
do you suppose he would have said about a baptised infant? There was a true Christian, who correctly
recognised and regarded God's work and creature. Therefore, I say that all nuns and monks who lack
faith, and who trust in their own chastity and in their order, are not worthy of rocking a baptised child or

preparing its pap, even if it were the child of a harlot. This is because their order and manner of life has
no word of God as its warrant. They cannot boast that what they do is pleasing in God's sight, as can the
woman in childbirth, even if her child is born out of wedlock.
I say these things in order that we may learn how honourable a thing it is to live in that estate which God
has ordained. In it we find God's word and good pleasure, by which all the works, conduct, and
sufferings of that estate become holy, godly, and precious so that Solomon even congratulates such a
man and says in Proverbs 5 [:18], "Rejoice in the wife of your youth," and again in Ecclesiastes 11 [9:9],
"Enjoy life with the wife whom you love all the days of your vain life." Doubtless, Solomon is not
speaking here of carnal pleasure, since it is the Holy Spirit who speaks through him. He is rather
offering godly comfort to those who find much drudgery in married life. This he does by way of defence
against those who scoff at the divine ordinance and, like the pagans, seek but fail to find in marriage
anything beyond a carnal and fleeting sensual pleasure.
Conversely, we learn how wretched is the spiritual estate of monks and nuns by its very nature, for it
lacks the word and pleasure of God. All its works, conduct, and sufferings are un-Christian, vain, and
pernicious, so that Christ even says to their warning in Matthew 15 [:9], "In vain do they worship me
according to the commandments of men." There is therefore no comparison between a married woman
who lives in faith and in the recognition of her estate, and a cloistered nun who lives in unbelief and in
the presumptuousness of her ecclesiastical estate, just as God's ways and man's ways are beyond
compare, as He says in Isaiah 55 [:9], "As the heavens are higher than the earth, so are my ways higher
than your ways." It is a great blessing for one to have God's word as his warrant, so that he can speak
right up and say to God, "See, this thou hast spoken, it is thy good pleasure." what does such a man care
if it seems to be displeasing and ridiculous to the whole world?
Small wonder that married folk for the most part experience little but bitterness and anguish. They have
no knowledge of God's word and will concerning their estate, and are therefore just as wretched as
monks and nuns since both lack the comfort and assurance of God's good pleasure; This is why it is
impossible for them to endure outward bitterness and drudgery, for it is too much for a man to have to
suffer both inward and outward bitterness. If they inwardly fail to realise that their estate is pleasing in
the sight of God, bitterness is already there; if they then seek an outward pleasure therein, they fail to
find it. Bitterness is joined with bitterness, and thence arises of necessity the loud outcry and the
writings against women and the estate of marriage.
God's work and ordinance must and will be accepted and borne on the strength of God's word and
assurance; otherwise they do damage and become unbearable. Therefore, St. Paul tempers his words
nicely when he says, I Corinthians '7 [:28], "Those who marry will have worldly troubles," that is,
outward bitterness. He is silent on the inner, spiritual delight, however, because outward bitterness is
common to both believers and unbelievers; indeed, it is characteristic of the estate of marriage. No one
can have real happiness in marriage who does not recognise in firm faith that this estate together with all
its works, however insignificant, is pleasing to God and precious in his sight. These works are indeed
insignificant and mean; yet it is from them that we all trace our origin, we have all had need of them.
Without them no man would exist. For this reason they are pleasing to God who has so ordained them,
and thereby graciously cares for us like a kind and loving mother.
Observe that thus far I have told you nothing of the estate of marriage except that which the world and
reason in their blindness shrink from and sneer at as a mean, unhappy, troublesome mode of life. We
have seen how all these shortcomings in fact comprise noble virtues and true delight if one but looks at
God's word and will, and thereby recognises its true nature. I will not mention the other advantages and
delights implicit in a marriage that goes well that husband and wife cherish one another, become one,
serve one another, and other attendant blessings lest somebody shut me up by saying that I am speaking

about something I have not experienced and that there is more gall than honey in marriage. I base my
remarks on Scripture, which to me is surer than all experience and cannot lie to me. He who finds still
other good things in marriage profits all the more, and should give thanks to God. Whatever God calls
good must of necessity always be good, unless men do not recognise it or perversely misuse it.
I therefore pass over the good or evil which experience offers, and confine myself to such good as
Scripture and truth ascribe to marriage. It is no slight boon that in wedlock fornication and unchastity are
checked and eliminated. This in itself is so great a good that it alone should be enough to induce men to
marry forthwith, and for many reasons.
The first reason is that fornication destroys not only the soul but also body, property, honour, and family
as well. For we see how a licentious and wicked life not only brings great disgrace but is also a
spendthrift life, more costly than wedlock, and that illicit partners necessarily occasion greater suffering
for one another than do married folk. Beyond that it consumes the body, corrupts flesh and blood,
nature, and physical constitution. Through such a variety of evil consequences God takes a rigid
position, as though he would actually drive people away from fornication and into marriage. However,
few are thereby convinced or converted.
Some, however, have given the matter thought and so learned from their own experience that they have
coined an excellent proverb, "Early to rise and early to wed; that should no one ever regret." Why? Well
because from that there come people who retain a sound body, a good conscience, property, and honour
and family, all of which are so ruined and dissipated by fornication, that, once lost, it is well-nigh
impossible to regain them scarcely one in a hundred succeeds. This was the benefit cited by Paul in I
Corinthians 7 [:2], "To avoid immorality, each man should have his own wife, and each. woman her
own husband."
The estate of marriage, however, redounds to the benefit not alone of the body, property, honour, and
soul of an individual, but also to the benefit of whole cities and countries, in that they remain exempt
from the plagues imposed by God. We know only too well that the most terrible plagues have befallen
lands and people because of fornication. This was the sin cited as the reason why the world was
drowned in the Deluge, Genesis 6 [:1-13], and Sodom and Gomorrah were buried in flames, Genesis 19
[:1-24]. We see before our very eyes that God even now sends more new plagues.
Many think they can evade marriage by having their fling [auss bubenn] for a time, and then becoming
righteous. My dear fellow, if one in a thousand succeeds in this, that would be doing very well. He who
intends to lead a chaste life had better begin early, and attain it not with but without fornication, either
by the grace of God or through marriage. We see only too well how they make out every day. It might
well be called plunging into immorality rather than growing to maturity. It is the devil who has brought
this about, and coined such damnable sayings as, "One has to play the fool at least once"; or, "He who
does it not in his youth does it in his old age"; or, "A young saint, an old devil." Such are the sentiments
of the poet Terence and other pagans. This is heathenish; they speak like heathens, yea, like devils.
It is certainly a fact that he who refuses to marry must fall into immorality. How could it be otherwise,
since God has created man and woman to produce seed and to multiply? Why should one not forestall
immorality by means of marriage? For if special grace does not exempt a person, his nature must and
will compel him to produce seed and to multiply. If this does not occur within marriage, how else can it
occur except in fornication or secret sins? But, they say, suppose I am neither married nor immoral, and
force myself to remain continent? Do you not hear that restraint is impossible without the special grace?
For God's word does not admit of restraint; neither does it lie when it says, "Be fruitful and
multiply" [Gen. 1:28]. You can neither escape nor restrain yourself from being fruitful and multiplying;
it is God's ordinance and takes its course.

Physicians are not amiss when they say: If this natural function is forcibly restrained it necessarily
strikes into the flesh and blood and becomes a poison, whence the body becomes unhealthy, enervated,
sweaty, and foul-smelling. That which should have issued in fruitfulness and propagation has to be
absorbed within the body itself. Unless there is terrific hunger or immense labour or the supreme grace,
the body cannot take it; it necessarily becomes unhealthy and sickly. Hence, we see how weak and
sickly barren women are. Those who are fruitful, however, are healthier, cleanlier, and happier. And
even if they bear themselves weary, or ultimately bear themselves out that does not hurt. Let them bear
themselves out. This is the purpose for which they exist. It is better to have a brief life with good health
than a long life in ill health.
But the greatest good in married life, that which makes all suffering and labour worth while, is that God
grants offspring and commands that they be brought up to worship and serve him. In all the world this is
the noblest and most precious work, because to God there can be nothing dearer than the salvation of
souls. Now since we are all duty bound to suffer death, if need be, that we might bring a single soul to
God, you can see how rich the estate of marriage is in good works. God has entrusted to its bosom souls
begotten of its own body, on whom it can lavish all manner of Christian works. Most certainly father
and mother are apostles, bishops, and priests to their children, for it is they who make them acquainted
with the gospel. In short, there is no greater or nobler authority on earth than that of parents over their
children, for this authority is both spiritual and temporal. whoever teaches the gospel to another is truly
his apostle and bishop. Mitre and staff and great estates indeed produce idols, but teaching the gospel
produces apostles and bishops. See therefore how good and great is God's work and ordinance!
Here I will let the matter rest and leave to others the task of searching out further benefits and
advantages of the estate of marriage. My purpose was only to enumerate those which a Christian can
have for conducting his married life in a Christian way, so that, as Solomon says, he may find his wife in
the sight of God and obtain favour from the Lord [Prov. 18:22]. In saying this I do not wish to disparage
virginity, or entice anyone away from virginity into marriage. Let each one act as he is able, and as he
feels it has been given to him by God. I simply wanted to check those scandalmongers who place
marriage so far beneath virginity that they dare to say: Even if the children should become holy (I Cor.
7:14], celibacy would still be better. One should not regard any estate as better in the sight of God than
the estate of marriage. In a worldly sense celibacy is probably better, since it has fewer cares and
anxieties. This is true, however, not for its own sake but in order that the celibate may better be able to
preach and care for God's word, as St Paul says in I Corinthians 7 [:32-34]. It is God's word and the
preaching which make celibacy, such as that of Christ and of Paul, better than the estate of marriage. In
itself, however, the celibate life is far inferior.
Finally, we have before us one big, strong objection to answer. Yes, they say, it would be a fine thing to
be married, but how will I support myself? I have nothing; take a wife and live on that, etc.
Undoubtedly, this is the greatest obstacle to marriage; it is this above all which prevents and breaks up
marriage and is the chief excuse for fornication. What shall I say to this objection? It shows lack of faith
and doubt of God's goodness and truth. It is therefore no wonder that where faith is lacking, nothing but
fornication and all manner of misfortune follow. They are lacking in this, that they want to be sure first
of their material resources, where they are to get their food, drink, and clothing [Matt. 6:31]. Yes, they
want to pull their head out of the noose of Genesis 3 [:19], "In the sweat of your face you shall eat
bread." They want to be lazy, greedy rascals who do not need to work. Therefore, they will get married
only if they can get wives who are rich, beautiful, pious, kind, indeed, wait, we'll have a picture of them
drawn for you.
Let such heathen go their way; we will not argue with them. If they should be lucky enough to obtain
such wives the marriages would still be un-Christian and without faith. They trust in God as long as they
know that they do not need him, and that they are well supplied. He who would enter into wedlock as a

Christian must not be ashamed of being poor and despised, and doing insignificant work. He should take
satisfaction in this: first, that his status and occupation are pleasing to God; second, that God will most
certainly provide for him if only he does his job to the best of his ability, and that, if he cannot be a
squire or a prince, he is a manservant or a maidservant.
Indeed, God has shown sufficiently in the first chapter of Genesis how he provides for us. He first
created and prepared all things in heaven and on earth, together with the beasts and all growing things,
before he created man. Thereby he demonstrated how he has laid up for us at all times a sufficient store
of food and clothing, even before we ask him for it. All we need to do is to work and avoid idleness;
then we shall certainly be fed and clothed. But a pitiful unbelief refuses to admit this. The unbeliever
sees, comprehends, and feels all the same that even if he worries himself to death over it, he can neither
produce nor maintain a single grain of wheat in the field. He knows too that even though all his
storehouses were full to overflowing, he could not make use of a single morsel or thread unless God
sustains him in life and health and preserves to him his possessions. Yet this has no effect upon him.
To sum the matter up: whoever finds himself unsuited to the celibate life should see to it right away that
he has something to do and to work at; then let him strike out in God's name and get married. A young
man should marry at the age of twenty at the latest, a young woman at fifteen to eighteen; that's when
they are still in good health and best suited for marriage. Let God worry about how they and their
children are to be fed. God makes children; he will surely also feed them. Should he fail to exalt you and
them here on earth, then take satisfaction in the fact that he has granted you a Christian marriage, and
know that he will exalt you there; and be thankful to him for his gifts and favours.
With all this extolling of married life, however, I have not meant to ascribe to nature a condition of
sinlessness. On the contrary, I say that flesh and blood, corrupted through Adam, is conceived and born
in sin, as Psalm 51 [:5] says. Intercourse is never without Sin; but God excuses it by his grace because
the estate of marriage is his work, and he preserves in and through the sin all that good which he has
implanted and blessed in marriage.

96 U.S. 76
24 L.Ed. 826
MEISTER
v.
MOORE.
October Term, 1877
ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.
This was ejectment, brought Oct. 9, 1873, by Bernard L. Meister, for the possession of
certain lots of ground in Pittsburg, Pa.
Both parties claimed under William Mowry, the plaintiff, as the alience of the alleged wife
and daughter of said William, and the defendants, as the vendees of his mother, in whom the title of
the property vested, if he died unmarried and without issue.
The plaintiff, to maintain the issue on his part, introduced evidence tending to prove that,
some time in the year 1844 or 1845, said William went from Pittsburg to the Saginaw Valley, in the
State of Michigan, and there became acquainted with Mary, the daughter of an Indian named Pero;
that, in the latter part of the year 1845, Mowry and Mary were married, and thereafter lived and
cohabited together as man and wife, and had one child born to them, named Elizabeth; that said
Mowry died intestate, some time in 1852, at Pittsburg, leaving no issue living at his death save said
Elizabeth, who afterwards married one Isaacs; and that they, Aug. 27, 1873, conveyed the
demanded premises to the plaintiff.
The defence was——
1. That the plaintiff's evidence, even if true, did not, under the statute of Michigan, regulating
the solemnization of marriage, establish a valid marriage between William Mowry and the Indian
woman.
2. That that evidence utterly failed to establish a valid marriage at common law.
The Revised Statutes of Michigan upon the subject of the
Page 77
solemnization of marriages, adopted in the year 1838, and in force at the time of the alleged
marriage, enact as follows:——
'SECT. 6. Marriages may be solemnized by any justice of the peace in the county in which he
is chosen; and they may be solemnized throughout the State by any minister of the gospel who has
been ordained according to the usages of his denomination, and who resides within this State, and
continues to preach the gospel.'
'SECT. 8. In the solemnization of marriage no particular form shall be required, except that
the parties shall solemnly declare, in the presence of the magistrate or minister and the attending
witnesses, that they take each other as husband and wife. In every case there shall be at least two
witnesses, besides the minister or magistrate, present at the ceremony.'
'SECT. 14. No marriage solemnized before any person professing to be a justice of the peace
or a minister of the gospel shall be deemed or adjudged to be void, nor shall the validity thereof be
in any way affected on account of any want of jurisdiction or authority in such supposed justice or
minister: Provided, that the marriage be consummated with a full belief on the part of the persons
so married, or either of them, that they have been lawfully joined in marriage.
'SECT. 15. The preceding provisions, so far as they relate to the manner of solemnizing
marriages, shall not affect marriages among the people called Friends, or Quakers, nor marriaged
among the people called Menonists; but such marriages may be solemnized in the manner
heretofore used and practised in their respective societies.' Rev. Stat. 1838, pp. 334, 335.
The court below charged the jury that the validity of the alleged marriage must be determined
by the laws of Michigan; and that, if they found that neither a minister nor a magistrate was present
thereat,—and such was the plaintiff's proof,—it was invalid under the statute of that State, and their
verdict should be for the defendants.
There was a verdict for the defendants. Judgment was rendered accordingly, whereupon the
plaintiff brought the case here.
Mr. H. W. Weir for the plaintiff in error.
A statute regulating the forms of marriage is merely directory, and, unless it contains an
express clause of nullity, a marriage per verba de praesenti is valid. 1 Bishop, Mar. & Div., sects.
277 a, 279, 280, 283 et seq.; The State v. Worthington, Chicago
Page 78
Legal News, June 16, 1877; Commonwealth v. Jackson, 11 Bush (Ky.), 679; 2 Greenl. Evid., sects.
461, 462. Such is the ruling of the Supreme Court of Michigan. Hutchins v. Kimmell, 31 Mich. 126;
Proctor v. Bigelow, Jan. Term, 1878, not yet reported.
Mr. M. W. Acheson, contra.
The judgment below is not erroneous. People v. Slack, 15 Mich. 198; Holmes v. Holmes, 1
Abb. (U. S.) 525; Milford v. Worcester, 7 Mass. 48; Ligonia v. Buxton, 2 Me. 95; Roche v.
Washington, 19 Ind. 53; The State v. Samuel, 2 Dev. & B. (N. C.) Eq. 177; State v. Patterson, 2
Ired. (N. C.) L. 346; Bashaw v. State of Tennessee, 1 Yerg. (Tenn.) 177; Grisham v. State of
Tennessee, 2 id. 589; Robertson v. The State, 42 Ala. 509.
Affirmative statutes which introduce a new rule or prescribe a specific mode of doing a thing
imply a negative of all that is not within their purview. Slade v. Drake, Hob. 298; Stradling v.
Morgan, Plowd. 206.
A contract in contravention of statutory provisions which contain nothing from which its
validity can be inferred, is void. Mitchell v. Smith, 1 Binn. (Pa.) 118; Bank v. Haldeman, 7 Watts &
S. (Pa.) 233.
MR. JUSTICE STRONG delivered the opinion of the court.
The learned judge of the Circuit Court instructed the jury, that, if neither a minister nor a
magistrate was present at the alleged marriage of William A. Mowry and the daughter of the Indian
Pero, the marriage was invalid under the Michigan statute; and this instruction is now alleged to
have been erroneous. It certainly withdrew from the consideration of the jury all evidence, if any
there was, of informal marriage by contract per verba de praesenti. That such a contract constitutes
a marriage at common law there can be no doubt, in view of the adjudications made in this country,
from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract.
Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do
not confer the right. Hence they are not within the principle, that, where a statute creates a right and
provides a remedy for
Page 79
its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right;
but there is always a presumption that the legislature has no such intention, unless it be plainly
expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a
prescribed manner; but such an enactment is a very different thing from a law requiring all
marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded
by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be
construed as merely directory, instead of being treated as destructive of a common-law right to
form the marriage relation by words of present assent. And such, we think, has been the rule
generally adopted in construing statutes regulating marriage. Whatever directions they may give
respecting its formation or solemnization, courts have usually held a marriage good at common law
to be good notwithstanding the statutes, unless they contain express words of nullity. This is the
conclusion reached by Mr. Bishop, after an examination of the authorities. Bishop, Mar. and Div.,
sect. 283 and notes. We do not propose to examine in detail the numerous decisions that have been
made by the State courts. In many of the States, enactments exist very similar to the Michigan
statute; but their object has manifestly been, not to declare what shall be requisite to the validity of
a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its
rite rather than of its validity, and they address themselves principally to the functionaries they
authorize to perform the ceremony. In most cases, the leading purpose is to secure a registration of
marriages, and evidence by which marriages may be proved; for example, by certificate of a
clergyman or magistrate, or by an exemplification of the registry. In a small number of the States, it
must be admitted, such statutes have been construed as denying validity to marriages not formed
according to the statutory directions. Notably has this been so in North Carolina and in Tennessee,
where the statute of North Carolina was in force. But the statute contained a provision declaring
null and void all marriages solemnized as directed, without a license first had. So, in
Massachusetts, it was early decided that a
Page 80
statute very like the Michigan statute rendered illegal a marriage which would have been good at
common law, but which was not entered into in the manner directed by the written law. Milford v.
Worcester, 7 Mass. 48. It may well be doubted, however, whether such is now the law in that State.
In Parton v. Henry (1 Gray (Mass.), 119), where the question was, whether a marriage of a girl
only thirteen years old, married without parental consent, was a valid marriage (the statute
prohibiting clergymen and magistrates from solemnizing marriages of females under eighteen,
without the consent of parents or guardians), the court held it good and binding, notwithstanding
the statute. In speaking of the effect of statutes regulating marriage, including the Massachusetts
statute (which, as we have said, contained all the provisions of the Michigan one), the court said:
'The effect of these and similar statutes is not to render such marriages, when duly solemnized,
void, although the statute provisions have not been complied with. They are intended as directory
only upon ministers and magistrates, and to prevent as far as possible, by penalties on them, the
solemnization of marriages when the prescribed conditions and formalities have not been fulfilled.
But, in the absence of any provision declaring marriages not celebrated in a prescribed manner, or
between parties of certain ages, absolutely void, it is held that all marriages regularly made
according to the common law are valid and binding, though had in violation of the specific
regulations imposed by statute.' There are two or three other States in which decisions have been
made like that in 7th Massachusetts.
We will not undertake to cite those which hold a different doctrine, one in accord with the
opinion we have cited from 1 Gray. Reference is made to them in Bishop, Mar. and Div. sect. 283
et seq.; in Reeve's Domestic Relations, 199, 200; in 2 Kent, Com. 90, 91; and in 2 Greenleaf on
Evidence. The rule deduced by all these writers from the decided cases is thus stated by Mr.
Greenleaf:——
'Though in most, if not all, the United States there are statutes regulating the celebration of
marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally
considered, that, in the absence of any positive statute declaring that all marriages
Page 81
not celebrated in the prescribed manner shall be void, or that none but certain magistrates or
ministers shall solemnize a marriage, any marriage, regularly made according to the common law,
without observing the statute regulations, would still be a valid marriage.'
As before remarked, the statutes are held merely directory; because marriage is a thing of
common right, because it is the policy of the State to encourage it, and because, as has sometimes
been said, any other construction would compel holding illegitimate the offspring of many parents
conscious of no violation of law.
The Michigan statute differs in no essential particular from those of other States which have
generally been so construed. It does not declare marriages void which have not been entered into in
the presence of a minister or a magistrate. It does not deny validity to marriages which are good at
common law. The most that can be said of it is, that it contains implications of an intention that all
marriages, except some particularly mentioned, should be celebrated in the manner prescribed. The
sixth section declares how they may be solemnized. The seventh describes what shall be required of
justices of the peace and ministers of the gospel before they solemnize any marriage. The eighth
declares that in every case, that is, whenever any marriage shall be solemnized in the manner
described in the act, there shall be at least two witnesses present beside the minister or magistrate.
The ninth, tenth, eleventh, sixteenth, and seventeenth sections provide for certificates, registers, and
exemplifications of records of marriages solemnized by magistrates and ministers. The twelfth and
thirteenth impose penalties upon justices and ministers joining persons in marriage contrary to the
provisions of the act, and upon persons joining others in marriage, knowing that they are not
lawfully authorized so to do. The fourteenth and fifteenth sections are those upon which most
reliance is placed in support of the charge of the Circuit Court. The former declares that no
marriage solemnized before any person professing to be a justice of the peace or minister of the
gospel shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in
such supposed minister or justice, provided the marriage be
Page 82
consummated with a full belief on the part of the persons so married, or either of them, that they
have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in
the presence of a minister or justice, or one professing to be such, were intended to be declared
void. But the implication is not necessarily so broad. It is satisfied if it reach not beyond marriages
in the mode allowed by the act of the legislature.
The fifteenth section exempts people called Quakers, or Friends, from the operation of the
act, as also Menonists. As to them the act gives no directions. From this, also, an inference is
attempted to be drawn that lawful marriages of all other persons must be in the mode directed or
allowed. We think the inference is not a necessary one. Both these sections, the fourteenth and the
fifteenth, are to be found in the acts of other States, in which it has been decided that the statutes do
not make invalid common-law marriages.
It is unnecessary, however, to pursue this line of thought. If there has been a construction
given to the statute by the Supreme Court of Michigan, that construction must, in this case, be
controlling with us. And we think the meaning and effect of the statute has been declared by that
court in the case of Hutchins v. Kimmell (31 Mich. 126), a case decided on the 13th of January,
1875. There, it is true, the direct question was, whether a marriage had been effected in a foreign
country. But, in considering it, the court found it necessary to declare what the law of the State was;
and it was thus stated by Cooley, J.: 'Had the supposed marriage taken place in this State, evidence,
that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-
operation of the parties, would have been evidence of a marriage, even though it had fallen short of
showing that the statutory regulations had been complied with, or had affirmatively shown that they
were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the
parties agreed presently to take each other for husband and wife, and from that time lived together
professedly in that relation, proof of these facts would be sufficient to constitute proof of a
marriage binding upon the parties, and which would subject them and others to
Page 83
legal penalties for a disregard of its obligations. This has become the settled doctrine of the
American courts; the few cases of dissent, or apparent dissent, being borne down by the great
weight of authority in favor of the rule as we have stated it;' citing a large number of authorities,
and concluding, 'such being the law of this State.' We cannot regard this as mere obiter dicta. It is
rather an authoritative declaration of what is the law of the State, notwithstanding the statute
regulating marriages. And if the law in 1875, it must have been the law in 1845, when, it is
claimed, Mowry and the Indian girl were married; for it is not claimed that any change of the law
was made between the time when the statute was enacted and 1875. The decision of the Michigan
Supreme Court had not been made when this case was tried in the court below. Had it been, it
would doubtless have been followed by the learned and careful circuit judge. But, accepting it as
the law of Michigan, we are constrained to rule there was error in charging the jury, that, if they
found neither a minister nor a magistrate was present at the alleged marriage, such marriage was
invalid, and the verdict should be for the defendants.
It has been argued, however, that there was no evidence of any marriage good at common
law, which could be submitted to the jury, and, therefore, that the error of the court could have done
the plaintiff no harm. If all the evidence given or legally offered were before us, we might be of
that opinion; but the record does not contain it all, and we are unable, therefore, to say the ruling of
the court was immaterial. The case must, therefore, go back for a new trial. We do not consider the
other questions presented. They may not arise on the second trial.
Judgment reversed, and new trial ordered.
NOTE.—In Meister v. Bissell, which embraced the same facts as did the preceding case, and
which was argued at the same time and by the same counsel as was that case, MR. JUSTICE
STRONG, in delivering the opinion of the court, remarked that the opinion given in that case
controlled this.
Judgment reversed, and new trial ordered.

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Constitutional Taxation There is much confusion about common law marriage. Some believe it to be
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State Sales Tax believe it to be nothing more than "shacking up" covered by dubious veneer of
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Federal Firearms Law remembered that men and women have been getting married for at least
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What is the United States Code? new event.
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Common Law Marriage Most people today see "common law marriage" as a noun. In other words, it is
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What is the Patriot Movement? noun. "Common law" is merely a system of law that certain marriages utilize.
Today's commonly accepted method of marriage is to acquire a government
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matured, questions arose as to what really constituted a marriage. These
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Administrative Law common law does not operate upon a marriage unless or until the validity of a
State Codes marriage is challenged in court. At that time, the court will use the common
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then investigate the particulars.
Here is the holding from the decision of the United States Supreme Court in
Please report technical problems Meister v. Moore 96 US 76 (1877):
found on this web site to:
webmaster@originalintent.org
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"As before remarked, the statutes are held merely directory;

because marriage is a thing of common right..." [emphasis
added]
Directory - A provision in a statute, rule of procedure, or the like, which is a

mere direction or instruction of no obligatory force, and involving no
invalidating consequence for its disregard, as opposed to an imperative or
mandatory provision, which must be followed. Black's Law Dictionary, 6th Ed.
The statutes to which the Court was referring were statutes in Massachusetts
and Michigan that purported to render invalid marriages not entered into under
the term of written [statutory] state law.
While the various state courts have prattled on for almost 200 years about
what the laws of their states do and do not allow concerning marriage, the US
Supreme Court cut straight to the heart of the issue in declaring that statutes
controlling marriage can only be directory because marriage is a common right,
which is not subject to interference or regulation by government. Or phrased
another way, the God-given right to marry existed prior to the creation of the
states or the national government, and therefore it is beyond their purview to
alter, modify, abolish, or interfere with, such a right.
In its decision in Meister, the Court refused to even examine the numerous
state court decisions prior to making its own decision. While this was assailed
by legal commentators of the day as an egregious choice, we can only agree
with the Court in its choice because a state court opinion has no authority to
affect a fundamental right that existed antecedent to the formation of the
state.
It should be noted that Meister has never been reversed and is still controlling
case law concerning the fundamental right to marry without state interference.
"Recognized" versus "Unlawful"
A lot of Americans hold the incorrect perception that common law marriage is
unlawful. Nothing could be further from the truth. There is no state law
anywhere that claims to make common law marriage "unlawful". Given the
decision in Meister, such a law could not withstand the scrutiny of the US
Supreme Court. And of course the exercise of a fundamental right is always
lawful!
It is true that in many states common law marriage is not "recognized". Given
the fact that common law marriage is lawful, one might reasonably ask what it
meant by "not recognized". Without getting into a lot of legal mumbo-jumbo
"not recognized" means that in the eyes of the State "the marriage is not
known/understood/perceived to exist". We agree with that legal concept and
we can see nothing in that matter to concern us.
A "statutory marriage" is registered with the State as a result of the man and
woman applying for a State marriage license and thus entering into a three-
party contract with the State. Obviously the State keeps records of all
contracts to which it is a party and therefore such a marriage is "known to
exist" to State authorities. It is equally obvious that a private common law
marriage would not be "known to exist" to State authorities. The problem
arises from the erroneous view that "not recognized" is synonymous with
"invalid". Because of Meister, no state can arbitrarily declare common law
marriage invalid by legislation, and none have done so! To state the point most
clearly - "not recognized" does not mean, "invalid".
Validity of Marriage

Now that we have established that "recognition" and "validity" are two
separate issues, one might then reasonably inquire as to what constitutes a
"valid" marriage at common law?
It should be pointed out that under the common law, unless there is a
controversy that arrives before a court of law, which calls into question the
validity of a marriage, a marriage thought proper by the consenting parties is a
valid marriage. It is bringing the marriage within the scope of judicial review
that raises the specter of the marriage being invalidated.
The issues that a court may review in determining the validity of a marriage
are:
Consent of both parties.

The existence of a marriage contract - oral or written.
The existence of a marriage contract - present or future tense
Prior marriages still in effect.
Whether or not there is/was cohabitation.
Solemnization or ceremony.
Marriage Certificate providing evidence of a ceremony.
A secret or deceptive marriage.
A marriage based on false representations.
Whether the scope and effect of an impediment produces an invalid
marriage.
Whether there are children that will be rendered bastards.
Whether a religious figure performed the marriage ceremony.
This treatise would be prohibitively long (and likely pretty boring) if we

explored each of these issues in depth. Instead we think it is in the best
interest of the reader to discuss the elements that create a common law
marriage that can never be invalidated by a court.
Consent - It is critical to be able to provide evidence of consent.

Although verbal consent is sufficient for validity, there are times (such as
after one party has died) that a showing of verbal consent by both
parties may be difficult to achieve. For this reason, it is highly
recommended that consent by demonstrated through the existence of a
written marriage contract, signed by both husband and wife.
Cohabitation is also generally viewed as evidence of consent.
Contract - A written marriage contract should establish the marriage in
the present tense, as opposed to constituting a promise of marriage at
some designated time in the future. Although courts have supported
future tense marriage agreements, such an agreement is by means as
secure as a present tense contract. The contract should specify the basic
rights and duties of each party.
Prior Marriages - Although courts have upheld the validity of some
marriages in which one or both parties were still married (at common
law) to other people, one should not count on such leniency. One should
be able to prove (through evidence) that any prior marriages have been
properly dissolved.
Secret Marriages - Although the courts have generally accepted the
view that a husband and wife may choose to keep a marriage secret
without affecting its validity, again, one should steer clear of
arrangements that leave room for today's court to render unfavorable
decisions concerning validity.
Solemnization or ceremony - Although the accepted doctrine is that a
ceremony of solemnization is not a required element for validity, such a
ceremony demonstrates consent as well as dispelling any speculation of
secrecy or deception.
Certificate of Marriage - While marriage certificates are most common
these days in statutory marriages, one can create a marriage certificate

easily enough on a personal computer, or one can have a graphic artist

create one for you. The certificate should be signed by three witnesses. A
properly executed marriage certificate lends to the evidentiary weight of
consent.
Photographic Evidence - In addition to a certificate of marriage, today
one can memorialize the event in photographs or on video.
Religious Ceremony - The requirement to have a religious figure
perform the service is essentially dead. Such a requirement would bar
atheists from marriage. Additionally, and more importantly, the common
law is based on the Bible and there is no scriptural command, or even
permission, for a religious leader to perform a wedding ceremony. This
reality has been given recognition by the courts.
In summary, validity (or lack thereof) is often determined based a composite

picture drawn from the totality of the circumstances. The person who wishes to
establish an incontrovertible record of a valid common law marriage should
make sure to steer clear of areas that leave room for ambiguity. One who
wishes to make an incontrovertible record should:
1. Have both parties sign a marriage contract and have the document
notarized.
2. Have a ceremony with witnesses present.
3. Have three witnesses sign a marriage certificate.
4. Memorialize the ceremony in photographs or on video.
5. Cohabitate after the contract has been signed or the ceremony
performed.
6. Let friends, co-workers, and people in the community know you and your
spouse are married.
By applying each of these elements, there is no court in America that can

declare your common law marriage invalid.
Why has Common Law Marriage acquired a dubious reputation?
Many people shy away from common law marriage today because they feel it is
nothing more than "shacking-up", covered by a very thin veneer of
respectability, as well as affording no legal protection concerning property
rights and child custody issues if the marriage fails. Since those are really two
separate issues, lets look at the "shacking-up" perception first.
Pretending To Be Married
People who look at common law marriage as merely shacking-up are not
necessarily wrong in their view. Whenever The People have a right secured to
them that the government cannot control or interfere with, there will always be
people who will misuse that right. That's just human nature. Common law
marriage is not immune to that human foible and may very well, by its nature,
be more prone to misuse than some other rights.
It is sad but true that many people simply use the principle of common law
marriage as a convenient cover for cohabitating without any intention of
establishing a true marriage. It is also true that historically the state courts
have been filled with people alleging to be the spouse of a deceased person
only for the purpose of getting at the decedent's property. These circumstances
(as well as others) have led the courts to establish criteria for the validity of
common law marriages.
We encourage people to use their right of common law marriage only in

circumstances where a truly committed marriage is desired. In our opinion,
marriage should be approached with reverence; its dignity promoted and
preserved.

Property and Custody Right
There is a perception that there are no protections for property rights and/or
child custody concerns in a common law marriage. That is one of the many
inaccurate perceptions of common law marriage.
All marriages, statutory and common law, are based on a contract. In the case
of a statutory marriage, the contract is between three parties - the husband,
the wife, and the State - the State being the superior party of interest. In such
marriages, if the husband and wife wish to dissolve the marriage they must do
so through a court that is enforcing that State's Family Law Code. We say
"must" because once the State was involved in the contract as the superior
party of interest, the husband and wife are legally bound to obey the State in
matters that are controlled by the State's Family Code.
In the case of common law marriage, there are two ways that property rights
and child custody issues can be addressed. The first and most desirable
method is to structure the contract to include the mechanism by which a
termination of the contract shall occur. The parties to the contract (husband
and wife to be) can sit down and agree on how they would want to dissolve the
marriage if that circumstance were to occur. In a section of the contract
concerning the dissolving of the contract, the parties can specify how property
is to be divided and how child custody issues will be addressed. Often times
constructing a framework for such matters when you're happy and in love will
help provide a smoother road if the unfortunate occurs. We suggest structuring
methods that involve submitting your possible disputes to your church elders
or to a small panel of trusted friends. In this way the decisions that you're
seeking will be rendered by people who know you and love you, rather than by
some government bureaucrat in a black robe.
If pre-structuring a mechanism for divorce within the contract doesn't appeal

to you, you always have the option of submitting your marriage to the
jurisdiction of your State's family law court. And have no doubt, if you submit
your marriage contract to the Family Law Court, it will assume jurisdiction. You
should understand that if you take this route, you are surrendering your
independence to the State. You cannot back out if you don't like what the court
decides. You will be bound by the decisions of the court just as if you'd entered
into a statutory marriage.
Proving Your Marriage
You will only be called upon to "prove" your marriage if you are seeking some
right or benefit (either private or public) that is available only to a person who
is married. Examples of such matters are; death benefits to spouse on a life
insurance policy; company provided medical benefits to spouse, etc.
If the right or benefit is coming from a private firm, usually a properly

executed Marriage Certificate will do the trick. If that is deemed insufficient,
one may need to provide a sworn affidavit. Generally, a sworn affidavit is
considered conclusive on a matter unless the opposing party can rebut the
affidavit.
If the right or benefit is coming from a government agency, one should start by
submitting the properly executed Marriage Certificate. If the agency says that
the certificate is unsatisfactory, one should immediately ask for an
administrative hearing. At the hearing, one should do the following:
1. Submit into evidence items 1, 3, & 4 (above), plus any other items of
evidentiary value that proves the marriage.
2. Ask to be sworn in and then give direct testimony that you and your
spouse are married; give the details of your marriage (i.e. contract,
dates, ceremony, etc.). In your testimony, include the Court's holding

from Meister, that all State marriage statutes are merely directory in
nature and that there can be no adverse consequence or invalidity for not
following a statute that is only directory.
3. Ask the agency representative (who should not the be the hearing officer)
to be sworn in and then ask him/her to enter into the official record any
evidence the agency possesses that your common law marriage is not
lawfully valid.
4. Ask the agency representative to enter into the official record any
evidence that the agency is precluded from recognizing any lawfully valid
marriage.
If you are prepared, and you're astute during the hearing, odds are good the
agency will recognize your marriage as valid and binding upon them. If they
don't, then their own official record can now be used against them in a court
action to force them to recognize the marriage. Remember, when a court
reviews an agency's decision, it is nothing more than an "administrative
appeal" handled by a guy in a black robe. The only evidence that the court can
consider about your marriage is that which was entered into the official record
during the administrative hearing and any agency regulations on the subject.
More on Common Law Marriage
It is interesting to note the current definition of "marriage license" in Black's

Law Dictionary, 6th Ed [1991] (which is the one used in a Family Law court):
Marriage license - A license or permission granted by public

authority to persons who intend to intermarry... By statute in most
jurisdictions, it is made an essential prerequisite to lawful
solemnization of the marriage."
So far, so good; a license is required for persons who desire to "intermarry".

Fine; but what exactly does "intermarry" mean?
Black's Law Dictionary (6th Ed):
Intermarry - See Miscegenation.
Black's Law Dictionary (6th Ed):
Miscegenation - Mixture of races. Term formerly applied to

marriage between persons of a different race. [Now called
"intermarry".] Statutes prohibiting marriage between persons of
different races have been held to be invalid as contrary to equal
protection clause of the Constitution.
[Editor's Note: Please note that the courts have held it to be unconstitutional to
altogether "prohibit" such marriages, but the courts do not say that it is
unconstitutional to require such marriages to be licensed.]
Keeping the foregoing facts in mind, let's look at a typical State marriage
statute. Since we are most familiar with California statutes, we'll examine the
section from the California Family Code:
Section 300 - Marriage is a personal relation arising out of a civil

contract between a man and a woman, to which the consent of the
parties capable of making that contract is necessary. Consent alone
does not constitute marriage. Consent must be followed by the
issuance of a license and solemnization as authorized by this
division... [Underlines added for emphasis]
As you likely know, statutory law that lays a duty upon a person must be

specific in the particulars that give rise to the duty. You will note that the
section 300 does not require anyone to apply for a license; it merely says that
consent "must" be followed by the issuance of a license. How then shall we
interpret "must" in this context?
Must - This word, like the word "shall", is primarily of mandatory

effect... But this meaning of the word is not the only one, and it is
often used in a merely directory sense, and consequently is a
synonym for the word "may"...
Black's Law Dictionary, 6th Ed.
Given the US Supreme Court's holding in Meister [that all State marriage laws
are merely directory in nature] which of the two definitions of "must" are
applicable? Clearly the definition that gives the statute a directory character
must be applied if the statute is to comports itself with the Meister decision,
and thus remain within the bounds of Constitutionality.
If the legislative draftsmen who wrote these laws were not attempting to
deceive you, section 300 would not depend on the subterfuge of veiled
definitions, and it would read as follows:
Section 300 (our revised version) - Marriage is a personal relation

arising out of a civil contract between a man and a woman, to
which the consent of the parties capable of making that contract is
necessary. Consent alone does not constitute marriage. Consent
may be followed by the issuance of a license if a license is applied
for. If a license is issued, the marriage must then be followed by
solemnization as authorized by this division...
Reference Material
If you would like to learn more about common law marriage, an excellent legal
analysis of the subject can be found in the book, "Common Law Marriage and
its Development in the United States", written by Otto E. Koegel, D.C.L. This
book was published by John Byrne & Company in 1922 and can generally only
be found in a well-stocked law library.

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COMMON LAW MARRIAGE

COMMON LAW MARRIAGE

Marriage, a word from the 14th century French (marier) to marry.

Throughout human history, people married to arrange child rearing, pass on

All Protestant and Eastern Orthodox countries in Europe eventually abolished

What's Legally Valid and What's Not?

Directory - A provision in a statute, rule of procedure, or the like, which is a

"Recognized" versus "Unlawful"

What constitutes a "valid" marriage at common law?

Unless there is a controversy over the validity of a marriage, a marriage

In summary, validity is often determined based a composite picture drawn from

Both parties sign a marriage contract and have it notarized.

By applying each of these elements, there is no court in America that can

Minister: "Who gives this woman to be married to this man?"

(Groom answers, "I do.")

(Bride answers, "I do.")

Minister states, "Repeat after me."

Minister: "Please join hands."

5 Reasons Why Christians Should Not Obtain a State

2. When you marry with a marriage license, you grant the

file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

property you own. There is plenty of case law in American

file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

regarding whom they married. Daughters were to be given in

file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

parties to that contract. 1.You; 2. Your husband or wife, as the

George Washington was married without a marriage license.

file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

began allowing interracial marriages or miscegenation as long

file://G:\PROJECTS\Zehren, John\5reasons2not-license-marriage.htm 10/9/2009

someone anymore than you should have to obtain a license

This pamphlet is available in print form. Click here to order.

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mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

1. Common law marriages are not licensed by government authorities.

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mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

The requirements in some other provinces are as follows:

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mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

mhtml:file://G:\PROJECTS\Zehren, John\Common-law marriage - Wikipedia, the free encyclopedia.mht 10/9/2009

The putative spouse concept is likewise recognized in Australia. [8]

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Retrieved from "http://en.wikipedia.org/wiki/Common-law_marriage"

Categories: Marriage | Family law

■ This page was last modified 20:42, 19 October 2006.

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Partners Task Force for Gay & Lesbian Couples

The History of Marriage as an Institution

2. In 1076, Pope Alexander II issued a decree prohibiting marriages between couples

6. The Pilgrims outlawed courtship of a daughter or a female servant unless consent

For the opening paragraphs:

Article © 1997, Larry R. Peterson, Ph.D.

Richard Perry LOVING et ux., Appellants,

Argued April 10, 1967.

Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard

R. D. McIlwaine, III, Richmond, Va., for appellee.

William M. Marutani, Philadelphia, Pa., for Japanese American Citizens

Mr. Chief Justice WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman,