WEDDING WITHOUT A LICENSE

QUESTION:

Two elderly people, both on Social Security, would like to be married by Jewish law (by a Rabbi and under a a Chuppah, etc.) but without taking out a marriage license. The reason for their desiring to be married without a marriage license was to avoid reduction in the total of their Social Security. May the Rabbi officiate at this marriage? Is this mariage valid according to Jewish law? (Asked by Rabbi Allen S. Mailer, Culver City, California.)

ANSWER:

THE QUESTION raised here may very well become an important one. I have learned from a number of sources that there are many elderly people now living together without any marriage ceremony at all. The reason that they are not formally married is the same as given in the question, namely, to avoid reduction in their joint Social Security. This couple, a religious minded couple, would not live together without some marriage ceremony. There are undoubtedly other such couples, so the question will very likely come up rather often.

The specific question asked is whether this marriage (if the Rabbi does conduct it) is valid according to Jewish law. Of course it is. Jewish marriage is not dependent upon outside law, nor is it dependent upon the formalities of public ritual. Jewish legal literature is full of cases in which a young man in the presence of others gave an object of value to a young girl and said that the object was given for the purpose of marriage. If the girl accepts the object for this purpose and there are legal witnesses present, the marriage is certainly valid enough to require a get, a Jewish divorce, if it ever is to be dissolved. So considering Jewish law separately, if the groom gives an object as, for example, a ring, and pronounces the words which indicate that it is for the purpose of marriage, and there were valid (kosher) witnesses present, this marriage is valid Jewishly and would require a get to dissolve it.

But the Rabbi and the couple are also citizens of the United States and are subject to American law. So it becomes important to ask: Would this marriage be valid in the eyes of the state? Let us say, for example, that the state (as many states do) prohibits the marriage of two cousins, a marriage which is permitted in Jewish law. A Rabbi officiating at such a marriage would be conducting a valid Jewish marriage but a non-valid state marriage. Should a Rabbi officiate at such a marriage when there is such a conflict of laws?

As far as I know, there has been no discussion of this conflict in American-Jewish legal literature. It has been discussed in England by the Anglo-Jewish legal scholar, H. S. Q. Henriques, in his book, Jewish Marriage and English Law, London, 1909. In England many immigrants came from eastern Europe, where the state exercised no control over Jewish marriage, and the sole evidence that the marriage had taken place was the Jewish marriage document, the kesubah. English law accepts the kesubah as evidence. Then, also, there were some marriages conducted by Rabbis, in England, which would be invalid in English law (such as a marriage of an uncle and niece) but were valid by Jewish law. These were called in Jewish parlance a shtille chuppeh (a silent or a private marriage ceremony). Henriques does not say that such a marriage is invalid, but he says (page 5 3) : “Though valid, such marriage should not be encouraged, being in direct contradiction to the spirit of modern legislation.” He adds further that it would lead to many abuses, such as desertion, etc.

Until you raised the question, I do not remember reading anywhere in our American-Jewish literature, any question of a shtille chuppeh, that is to say, a marriage without legal license or validation.

It must now be mentioned that an important practical question, from the point of view of the Rabbi, must first be settled. Is the Rabbi violating the state law by officiating for a couple who do not have a marriage license? I have received various legal opinions on this matter. The majority opinion seems to be that it is a violation of the law so to officiate. Another opinion is that since our particular state (Pennsylvania) gives some recognition to common law marriage, a Rabbi officiating at such a marriage might not be considered culpable. But even the latter opinion (as to common law marriage) is debated on the ground that common law marriage is recognized only as a man’s acknowledgment of a present situation, but not as a prepared-for status. Therefore it would be wise for the Rabbi, before officiating at such a shtille chuppeh, to inquire from legal authorities whether or not he may be violating the law of the state.

So far the conflict between the two legal systems has been discussed from the point of view of state law; i.e., what attitude the state will take to a marriage without its permission (license). But now we must ask the other question, from the point of view of Jewish law: What is the attitude of Jewish law to a marriage conducted contrary to the laws of the state? Is there not the well known principle in Jewish law, dina d’malchusa dina, that the law of the state is valid in Jewish law?

Of course this principle applies primarily to civil matters, taxes, business law, etc., but not to ritual matters. If the state imposes a tax on the entire community, it is a valid mandate in Jewish law that the tax must be paid. But the principle does not apply to spiritual and ritual matters. If, for example, the state would prohibit the Jewish method of slaughtering animals (as has happened in certain countries) or the holding of religious services on Saturday (as might happen when Church and State are one) in such matters we do not say that the law of the state is valid in Jewish law. On the contrary, we would (as a matter of conscience) resist the law of the state in all such religious matters.

Now marriage and divorce are deemed spiritual matters in which the law of the state does not apply. Thus if a couple is divorced by civil law, they are not yet considered divorced in Jewish Orthodox law, but must also receive a Jewish divorce (get). Nevertheless, even in this case, in practice (if not in theory) Jewish law takes cognizance of civil law. In actual practice in America, a get is not granted by Jewish authorities unless the couple has first received a divorce from the state courts. But as far as I know, there has been no discussion in the United States of the interrelationship of Jewish law and state law in regard to marriage.

Although the principle of dina d’malchusa dina does not apply to such matters as marriage and divorce, there is a directly relevant way in which it does apply in the particular marriage which is the subject of this inquiry. As has been mentioned, the principle of dina d’malchusa dina applies in civil matters. In the discussion of this principle it has been frequently stated that not every fiscal law by the ruler of the state (the law was developed during the period of monarchy) was deemed valid in Jewish law. If it was an unfair tax placed only upon the Jews, or if it was some willful notion of the king, such decrees, although fiscal, were not valid in Jewish law. It was only such valid laws which applied equally to all citizens which were deemed valid in Jewish law.

Now it is evident that the Federal regulations governing Social Security are just and equal laws promulgated by authorized legal bodies, and as such, are deemed absolutely valid in Jewish law. Therefore since this marriage ceremony is being conducted without a license for the purpose of evading or contravening the just and legal regulations governing Social Security, such an arrangement must be deemed illegal, even from the Jewish point of view.

To sum up: Considered separately, as a Jewish ceremony, the marriage in question would be valid and would certainly require a Jewish divorce to dissolve it. It may, however, be an illegal action by the Rabbi who officiates, if the law of the state requires a recording and information of every marriage conducted. Furthermore, it is questionable whether such a marriage would be accepted as valid by the state. Finally, since the Social Security legislation is a civil matter, its laws are valid in Jewish law. Therefore from the Jewish point of view, the Rabbi may not assist in contravening the laws of Social Security.