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November 15, 2019 Feature

Religion and Marriage: The Implications for Today’s State Family Codes

Judge Thomas J. Walsh

The recent case of Obergefell v. Hodges has drawn attention to the institution of marriage and how religion fits in with that institution. Many believe the Obergefell decision undermined marriage in the United States and ran contrary to the laws of God, while others feel that the institution of marriage was enhanced and was entirely consistent with God’s love for all. This article examines the connection of religious faith and marriage and how that interaction impacts the practice of family law and the validity of a marriage.

History of Marriage and Religion

Human beings have likely resorted to religion to explain the unexplainable since the first human stood upright on the plains of Africa. It is likely that early humans explained natural disasters and illnesses with resort to unhappy gods. Fearing death as a final end, early humans developed rudimentary tales of an afterlife. Gradually, these rudimentary beliefs worked themselves into other aspects of human life. Birth, death, illness, natural disasters, eclipses, failed crops, and even war could have a tinge of divine. Humans eventually developed rituals intended to please the gods and bring good fortune upon themselves, and they sought to avoid those practices that angered the gods and could thus bring misfortune. From these basic beginnings, mankind developed various religious systems with multiple gods who were responsible for their own special aspect of human life, or with one god responsible for everything.

The history of marriage is also quite old, and its significance to society is obvious. “The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations,” the Obergefell Court observed. Although there is no evidence of when humans chose to start entering into monogamous unions, there is ample evidence of humans engaging in polygamous marriages such that both polygamy and monogamy were being practiced by different segments of society at the same time. The Books of Moses in the Judeo-Christian tradition reflect that King David had multiple wives, as did his son King Solomon. Before them, the patriarch Abraham had more than one wife, although his son Isaac had only one. Isaac’s son Jacob also had more than one wife. These examples are significant in that the religions that followed from these men eventually came to disapprove of this behavior while still holding these men up as pillars of religious faith. In the Islamic tradition, which also traces its roots to Abraham, polygamy is still permitted in certain circumstances, but it is not a common practice.

As the institution of marriage has developed throughout human history, it has come to serve some very important purposes across cultures. It offers a sense of fulfillment to each individual, and it provides stability for raising a family. In some cultures throughout history and still today, marriage serves as a way to unify families, build alliances, and create connections between families for economic or social reasons. In many cultures, marriage is simply the socially accepted way to conduct one’s life. All of these culturally important functions have very little, if any, connection to religion.

Although not originally a religious institution, marriage eventually came to be infused with religious significance. While having nothing to do with the ancient aspects of religion (e.g., marriage has nothing to do with explaining mysterious natural events or attaining the afterlife), religious systems came to see marriage as an important aspect of their authority. This does not seem at all unusual in light of the important role played by marriage in society. As Cicero indicated, “[t]he first bond of society is marriage; next, children; and then the family.” It would seem only natural that those advancing the importance of religion in society would want to bring the marital institution within their purview.

Yet despite the fusion of the institutions of religion and marriage, many aspects of marital unions still remain secular. For example, a wedding license acquired from the state is typically required before any marriage can be valid. The state has certain requirements that must be fulfilled in order to issue a marriage license, such as an assertion that both parties are eligible to marry each other, i.e., that they are not married to someone else or too closely tied by consanguinity. Further, the state often has specific regulations about who is authorized to perform a wedding ceremony.

Thus marriage is a very old and integral part of the human experience. As human history progressed, marriage gradually became intertwined with the human understanding of religion. It has, therefore, become of central interest to both the state and religious institutions and often serves to define an individual’s place in society.

The Rituals of Marriage

For a person of faith, marriage has some very specific religious implications. It is a public commitment to another person made before God. This ritual of expressing vows of marriage publicly in a religious setting brings solemnity and a sense of importance to the commitment. It is also a commitment before God and the community to raise children of the union in an honorable fashion and to live in a religious lifestyle. A person of faith making such a commitment before God is going to be very careful about selecting the person with whom to make that commitment. A person making this commitment is probably going to be less likely to seek a divorce given that the life-long commitment was made before God. Arguably, two people of faith making this type of religious commitment before God will have a more stable union.

A civil ceremony has some rituals as well. There is generally an officiant, an expression of basic commitment to the other person and the concept of marriage, and the signing of a marriage license. Beyond that, the civil ceremony can be embellished with all the pomp of a large religious wedding or it can very basic with little more than a signing ceremony for the marriage license.

Throughout the world there are cultural differences in how the religious marital ceremony and the civil marital ceremony are experienced. A recent Wisconsin case, Xiong v. Vang, 378 Wis. 2d 636 (Ct. App. 2017), demonstrates some of the problems of traditional marriage rituals for the western legal tradition. In May of 2014, an ethnic Hmong woman petitioned for divorce in a Wisconsin trial court. Xiong was seeking a divorce, property division, spousal support, and other relief from her husband, Vang. Her petition alleged that the parties were married on September 24, 1980, at Ban Vinai, a refugee camp in Thailand. At that time, both parties were Laotian nationals living as refugees in the Thailand camp. Vang moved to dismiss his wife’s divorce petition, alleging that the parties were never legally married.

An evidentiary hearing was held, the purpose of which was to determine if the two parties were actually married. Wisconsin law is clear that the validity of a marriage is determined by the place where the marriage is contracted. In this case, that location was Thailand. At the evidentiary hearing, testimony was provided by both parties. The wife testified that on September 24, 1980, she and Vang participated in a marriage ceremony performed by her uncle. Shortly after that, the two of them participated in a “strings ceremony.” Photographs were produced showing the parties in traditional Laotian clothes, and the wife testified that these were wedding clothes. She testified that she and Vang came to the United States in 1983 and over the next five years had four children together. She raised the children so Vang could go to engineering school. She further testified that in 2005 she learned that Vang had a girlfriend and that she stopped living with Vang in 2008. The wife’s uncle testified that he was the leader of the Xiong clan in the Ban Vinai refugee camp and that he had participated in the marriage negotiations leading up to the wedding of Xiong and Vang. The uncle also testified that at the time the wedding was being arranged, Xiong did not wish to marry Vang but was subsequently coerced into doing so. Thus, the marriage had been forced. He further testified that a dowry was paid of four silver bars and fifteen silver coins, and he confirmed the performance of the “strings ceremony.” Additional witnesses were produced by the wife that confirmed these ceremonial practices had occurred in September 1980.

Vang testified that he and Xiong were never married. He testified that the Hmong elders in the Ban Vinai refugee camp pressured him and Xiong to live together because their relationship was making the elders lose face. He testified that the ceremony that occurred in September 1980 had involved dinners and food but had not been a wedding ceremony. Rather, he said, it was a cohabitation ceremony. He verified that the two of them moved to the United States together and lived together until 2005. He also testified that not only did he obtain a new girlfriend after 2005 but that he subsequently married this girlfriend.

Additional testimony included the fact that Xiong and Vang had purchased a house together in joint names listing themselves as “husband and wife.” The parties had filed joint income tax returns listing themselves as “husband and wife.” Vang testified that they had to file in that fashion because there was no other way for them to file.

Two experts testified on behalf of the husband. One expert was a family law attorney practicing in Thailand. He testified that in 1980 the two parties to this case would have been illegal immigrants in Thailand and that under Thailand law, illegal immigrants are not permitted to get married or have their marriage legally recognized. The second expert was a Ph.D. student at the University of Wisconsin–Madison studying cultural anthropology with a focus on Hmong language and culture. He testified that he had participated in or witnessed hundreds of Hmong marriages and the photographs submitted by the wife during her testimony depicted neither traditional Hmong wedding clothes nor a traditional Hmong wedding ceremony. He testified that the Hmong do not recognized forced marriages.

The trial court found that it was unclear whether or not Thailand would recognize the marriage of the parties to the case and thus made no finding that there was a “valid” marriage for purposes of Wisconsin divorce law. However, the court affirmed a doctrine known in Wisconsin as a “putative marriage” that had never been directly applied to a family court case. There are three requirements for establishment of a “putative marriage”: first, the marriage must be solemnized in proper form; second, it must be celebrated in good faith by one or both parties; and third, by reason of some legal infirmity, it must be either void or voidable. The trial court found that on the facts of the case, a putative marriage existed even if Thailand would not recognize the validity of the marriage. The court then proceeded to address the issues of property division and spousal support. The Wisconsin appellate court affirmed the decision of the trial court.

The ultimate issue in this case was simply whether or not Wisconsin’s family code would apply to the breakup of this union. If so, the wife would be eligible for spousal support and an equal property division. If not, the wife would not be entitled to ask for spousal support but could still seek some limited equitable relief regarding property in which she might have an interest. In order to get at that issue, the question for the court was “What constitutes a marriage for the purpose of applying the statutory divorce laws?”.

When a nation-state or political subdivision thereof creates a family code, it follows the normal legislative process of any other law. When a culture, including its religious structure, sanctions a marriage, there is no such uniform process. Anything goes depending on the culture and/or religion that is involved. Some states in the United States have chosen to address these types of legal conundrums through the concept of common-law marriage. Although Xiong and Vang likely would have met the requirements of a common-law marriage, Wisconsin does not recognize common-law marriage. Further, while many people believe that to have a common-law marriage two people must simply live together for a period of time (seven years is the common belief), more is required than simply living together. Holding yourselves out as married in various ways is usually required by any state that recognizes such marital unions. Thus, circumstances may arise in states that recognize common-law marriage where even that construct will not resolve the issue and a court will need to address the question of what constitutes the basics of a valid marriage.

The Basics of a Marriage

The practice of polygamy is a very significant issue when discussing marriage because it is an example of a socially accepted practice that eventually became very socially unacceptable. This is the case both with respect to most religious systems and with respect to civil systems. The decision in Obergefell is bringing a similar sea change to marriage. It cannot really be argued that marriage has traditionally been seen as a union of one man and one woman (at least since polygamy lost favor). After Obergefell, marriage is now defined in the United States as a union between two people—of either different sexes or of the same sex. While other countries have already recognized such marriages, this is new and sudden in the United States. Most religious systems have not caught up with this change. The tension between religious/cultural and civil systems remains and will likely remain for quite some time. The acceptance of a prohibition on polygamy took quite some time to work itself into western culture. In fact, arguably, acceptance of monogamy never really has taken hold, as extramarital affairs and switching of intimate partners is a phenomenon that is alive and well in society. Nonetheless, it is likely that acceptance of the Obergefell decision will take generations.

It seems, therefore, that the concept of marriage needs a standard that can be applied, if nowhere else, in the divorce context. Wisconsin’s concept of “putative marriage” seems instructive. While Wisconsin does not recognize common-law marriage, it does recognize, through the “putative marriage” doctrine, that certain circumstances present equitable imperatives. Two people may not be married pursuant to the civil code, but, after conducting themselves in a certain manner, they need to be treated as married for practical and societal reasons. The resulting standard would need to be comprised of three elements. First, both parties would need to consent to the marriage. Second, there would have to be a belief that a marriage occurred. Third, there would have to be some evidence of the first two elements.

The notion that both parties must consent seems straight forward, but it lends itself to a factual determination based upon testimony and evidence. At the time of a divorce, testimony from one or both parties about whether they “consented” may not be trustworthy. Thus, further inquiry is appropriate. If both parties consented to a marriage but never had any type of religious, cultural, or civil ceremony, then there would not be a “belief” that the parties were married. This is significant because a given state is going to want some sort of solemnization of the marriage either by a religious system or a civil process. Again, this is a factual determination readily resolved by credible witness testimony and surrounding circumstances. If there was such an event and at least one person has a genuine “belief” that a marriage has occurred, then this condition has been satisfied.

Within the confines of Supreme Court decisions such as Obergefell, individual states have the right to decide what constitutes a valid marriage. It behooves each state to consider the cultural and religious marriage that may have occurred outside of its borders because couples are mobile and may move to a different state. However, in the last analysis, it is the state that needs a definition of marriage to facilitate marital law, estate law, and other related issues. People are going to make commitments to each other, some of which will last for life and some of which will be broken. These individual commitments will define relationships for the individual.


In his dissent in Obergefell v. Hodges, Chief Justice Roberts noted that “[m]arriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history . . . [i]t arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” Marriage, however, has moved way beyond this early conception and has come to be very intertwined with religious and cultural structures. Relying on their own concept of what marriage means to their religion or culture, individuals throughout the world enter into unions that they call marriage and move throughout the world, including to the United States. States should adopt some basic principles that, while not necessarily redefining the meaning of marriage, at least more specifically define what it means for purposes of their respective family codes.

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Judge Thomas J. Walsh has been a Brown County Circuit Court judge in Green Bay, Wisconsin, since 2012.