I should say at the outset that while I am the founder and Archpriest of the Aquarian Tabernacle Church tradition of the Wiccan religion, this information comes from my own personal experiences over some 34 years of church administration and reading of legal opinions. I am not an attorney, and suggest if you need more reliable or detailed information, you consult your own attorney. I am not qualified to give legal advice, other than my own personal opinions.
(The Rt. Rev.) Pete Pathfinder Davis, Index, WA, 8/19/2012
Those Wiccans who consider themselves priestesses or priests often assume they know what they can and can’t do regarding sanctifying a marriage, without becoming familiar with the laws of their state. That assumption may prove very dangerous for the priestess or priest in the long run. Most states have had very similar laws concerning marriage authority for a very long time, but because of the furor that arose surrounding gay marriage, that whole field of law is changing and evolving rapidly.
Some states have recognized the right of same-sex couples to marry, and some others have adopted laws prohibiting same-sex marriage. Some states are still silent on the issue. Because the regulation of marriage has always been the responsibility of the states, the recent federal “Defense of Marriage Act” is of questionable validity. Ultimately, the courts will have to decide, so it may take a while to sort it all out. It is important that clergy become familiar with the marriage laws of their state. Anyone with Internet access can usually read their (and other) state laws with just a few clicks of their mouse.
In the last 30 or 40 years in the United States, since Wicca has received legal recognition and clergy have the ability to obtain authority to solemnize marriages, the terms “marriage” and “handfasting” have been used interchangeably among Pagans to refer to a legally sanctioned marriage ceremony, performed by the priestess or priest under the authority granted them to solemnize marriages by the state, once a Marriage License has been obtained first.
However, there exists in some branches of Wicca, a practice of “Handfasting,” a legally unrecorded and informal kind of “in the eyes of the gods alone” marriage, usually stated as only “for a year and a day.” This ceremony is performed by someone considered a priest or priestess at the request of the parties and without the benefit or sanction of a legal Marriage License, and has no legal standing as a marriage whatsoever. The custom of handfasting without a marriage license has been, for the most part, a living-together arrangement, one sanctified by a priestess or priest in a ceremony before a religious community only, and neither recognized nor recorded by the state.
This unusual practice is foreign to modern western cultures and can present some very serious problems down the road, for both the couple and the minister. (It should be noted that the old legal concept of “common-law marriage” arising from cohabitation for some specified time period, is not recognized by 41 states and is applicable today in only 9.)
There has been a recent Kentucky appellate court decision* that held that even a highly religious ceremony of this sort is not a legally binding marriage and, (here’s the tough part), any marriage ceremony conducted without the legally required marriage license is an illegal act, an offense punishable to the minister (generally a misdemeanor that may include some jail time). Conducting an unlicensed marriage can be serious. Even though some Pagan traditions can show a history of such ceremonies, the practice is contrary to law in most places, and the possible ramifications can be so extreme as to make the continuation of this practice on the grounds of religious custom unsupportable, unwise and even personally risky.
The long- and short-range results of any unlicensed marriage ceremony can be the creation of all manner of complex legal problems, from denying the couple the ability to file joint tax returns, the loss of dependent deductions, employer health benefits can become taxable, death benefits and inheritance rights can be lost, the loss of marital exemption from estate taxes and real estate transfer taxes are just a few of the most obvious. The list goes on and can become very complicated, and the minister may personally be exposed to a fine and even some jail time. Always check your state laws to determine if conducting a wedding ceremony without a license is illegal under the laws of your state, as this case clearly has shown it to be in Kentucky.
If the purpose of not having the ceremony on record is, for example, to avoid loss of welfare payments, or one of the parties is an undocumented alien or may already be married, it would be equally illegal because the purpose of not recording the marriage is to lay groundwork for a criminal fraud. The Kentucky case revealed a clear understanding on the part of all parties that a license was an absolute requirement, yet they insisted there be no marriage license or reporting to the state. It eventually was revealed that neither party was in this country legally, and feared possible deportation. Both also wanted to remain legally unmarried, in order to be free to marry an American citizen later for the purpose of obtaining a “green card” and applying for citizenship on that basis. The purpose appears on the face of it to have fraudulent intent.
It may be possible for an attorney to create a document to be signed by those parties only wishing an informal non-legal wedding that could absolve the priest/ess of any culpability, but that is a subject to be addressed by an attorney in a written opinion for your church records. Such an agreement may be dispositive of the problem, but until it is clarified, caution is appropriate with handfastings.
==================================================================================== *(see Pinkhasov v. Petocsz, 331 S.W. 3d 285 [Ky. App. 2011]) The parties involved specifically refused to obtain a marriage license, and insisted their rabbi perform a very traditional Jewish wedding ceremony, but without license and/or any reporting to the state. Their rabbi’s advices to the contrary notwithstanding, they did so without a license and without any reference to witnessing or certification of a civil marriage. Kentucky law specifically demands a license be first obtained. The court discovered their purpose was motivated by a desire to preserve a future opportunity for an immigration law fraud. Their intent was to leave an opportunity to later each marry an American citizen to obtain legal residence in this country. Both had entered the country illegally and were undocumented aliens. Obtaining a license and then failing to record it after the marriage would have had a similar effect, leaving all parties open to legal trouble, including the rabbi.