BACKGROUND.

The law of New York is generally in accord with the law in other jurisdictions in the United States, in that formal solemnization of a marriage is statutory and not required under the common law; no particular form of ceremony is prescribed and any form the parties choose ordinarily suffices, so long as they declare in the presence of the person solemnizing the marriage that they take each other as husband and wife. While some sort of celebration or solemnization is necessary to the validity of a ceremonial marriage, noncompliance with a particular statutory regulation pertaining to marriage ceremonies, such as the number of witnesses required, has no effect on the validity of the marriage (45 N.Y. Jur. 2d 317).

SOLEMNIZATION BY WRITTEN CONTRACT.

A marriage can be solemnized by a written contract of marriage. The contract must be signed by both parties and at least two witnesses and all signatures must be given within the state. The contract must state the place of residence of each party and of each witness and must state the date and place of the marriage. The contract must be acknowleded by both the parties and the witnesses before a judge [of the Unified Court System]. The acknowledgement must be in the same form as required for the acknowledgement of real estate conveyances for recording. This form of solemnization may not be employed where either or both of the parties is under age eighteen (D.R.L. Cl1:5).

Parties married in this manner must file their marriage license with the judge who will acknowledge the contract, just as they would if their marriage were to be solemnized by civil authority or clergy.

SOLEMNIZATION BY CIVIL AUTHORITY.

Civil authorities authorized to perform marriage ceremonies include: the mayor of a city or village; city clerk, or deputy, in cities of over one million inhabitants;'a judge or justice within respective jurisdictions (condensed from D.R.L. Sec. 11; see for details and limitations.)

SOLEMNIZATION BY CLERGY.

The constitutional guarantee of freedom of religious worship includes the right to have a marriage solemnized by a minister of one's own faith. While the state may act to prevent marriages from being solemnized by mere philanderers purporting to officiate under the guise of a psuedo-religious faith, it may not interdict marriage ceremonies having a reverent character performed by a person having ecclesiastical sanction. O'Neill v. Hubbard, 180 Misc. 214, 40 N.Y.S.2d 202 (Sup. Ct. Kings County 1943) (holding unconstitutional statutory provision limiting solemnization to ministers affiliated with religions listed in a federal census of religious bodies).

To have authority to solemnnize marriages, there is no requirement that the church, synagogue, or other religious congregation over which the clergyman presides be affiliated with any denomination or order. Nor is there any requirement that clergy have received formal sanctioning authority from a governing board of a denomination or order or from the church, synagogue or congregation itself. Matter of Silverstein's Estate, 190 Misc. 745, 75 N.Y.S.2d 144 (Surr. Ct. Bronx County 1947). Thus, where the proof showed that the clergyman who performed the marriage ceremony had regularly conducted services in a synagogue attended by some 25 congregants, the court found there was sufficient evidence the clergyman was recognized by his congregants as their spiritual leader. In re. Silverman's Estate, supra.

The liberality in construction is stretched to the breaking point where the officiating clergyman appears to be a mere philanderer professing only a pseudo-religious faith. In Ravenal v. Ravenair 72 Misc. 2d 100, 338 N.Y.S.2d 324 (Sup. Ct. N.Y. County 1972), at issue was the validity of a marriage purportedly solemnized by a person who obtained his minister's credentials by mail, who did not preside over an actual church or religious organization, whose beliefs did not provide for any form of worship or religious service, and whose accrediting organization professed a willingness to ordain anyone for a modest free will offering. The court concluded that, under these circumstances, the person who performed the ceremony could not proprly be viewed, even with the benefit of liberal construcion, as a clergyman or minister of religion. The Ravenal case represents an extreme situation where the person who purported to solemnize the marriage lacked, at least to the court's mind, any of the objective manifestations of attributes generally associated with ministers or clergy. The court appears to have been convinced that the solemnizing officer was a charlatan, claiming ecclesiastical authority by virtue of a mail order ordination granted by a corporate entity that would ordain all comers. Where the parties to the marriage and the person who solemnized the marriage belong to, or ascibe to, a genuine religious faith, then the authority of the officiating person must be recognized.

The question of the genuineness of the religious faith is tested by objective criteria such as the regularity of worship and the existence of tenets or principles. The subjective values of the particular religion or faith are irrelevant, no matter how unconventional or no matter how unschooled in theology the clergyman appears to be.

Marriages among people of denominations who have a particular mode or manner of solemnizing marriages may be solemnized in the manner used and practiced by their denominations (D.R.L. Cl1:2).
Definitions. The Religous Corporations Law defines an "unincorporated church" as: "a congregation, society, or other assemblage of persons who are accustomed to statedly meet for divine worship or other religious observances, without having been incorporated for that purpose."

Generally, the terms "clergyman" and "minister" include a duly authorized pastor, rector, priest, rabbi, or other person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue (R.C.L. Sec. 2.)

However, in the Matter of Silverstein's Estate, supra, in 1947, a person who lacked conections with any ecclesiastical body, or any ordination or formal organizational affiliation, was ruled by the Surrogate Court of Bronx County to be a legitimate "minister", authorized to perform marriages. In this case, the marriage ceremony was performed in a synagogue by a man named Moskowitz. A congregation of about 25 persons regularly worshipped in the synagogue. Moskowitz was known to his congregants as the rabbi who, between 1933 and 1943, regularly performed all the duties of the spiritual leader for the group. There was no proof offered in court that the congregation formed a part of any of the existing religious movements followed by people of the Jewish faith, or that Moskowitz received authority from any governing body of any denomination or order to act a a rabbi. The court ruled that such authorization was unnecessary.

In addition, as noted, in O'Neill v. Hubbard, supra, in a proceeding in the nature of a writ of mandamus, under Article 78 of the Civil Practice Act, the court granted an application to compel the New York City Clerk to register the petitioner's name as a person authorized by law to solemnize marriages. A section of the statute was held unconstitutional insofar as it required a minister's denomination be listed in a Federal census of religious bodies, in order to solemnize marriages.

Authorities consulted confirm that a marriage may be solemnized by a clergy member or minister of the parties' choice, whether accredited by an incorporated "church" or simply having been chosen by a spiritual group to preside over their spiritual affairs.

THOMAS S. RUE
P.O. Box 706
Monticello, New York 12701
December 31, 1988

THE ABOVE DOES NOT CONSTITUTE LEGAL ADVICE. CONSULT AN ATTORNEY BEFORE ACTING.

Related article: By the Power Invested In Me: Witches wage war on city hall, win sweeping reform, Liberty magazine, July-August 1985.