Zimbabwe's Constitutional Court Says Marriage Under Age 18 Is Banned Without Exceptions

Zimbabwe's Constitutional Court yesterday held that the country's Constitution bars marriage below the age of 18 for either males or females. According to NewsdzeZimbabwe, the court held that  Sec. 78(1) of Zimbabwe's Constitution invalidates Sec. 22(1) of the Marriage Act that allowed girls (with consent of their parents or guardians) to marry at age 16 and boys to marry at age 18, and in addition allowed either to marry at a younger age with the consent of the Minister of Justice, Legal and Parliamentary Affairs.  The court held that the Constitution "sets 18 years as the minimum age of marriage...." and that the Constitution "permits no exception for religious, customary or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of public official, parents or guardians."

Suit Challenges Requirement of Marriage License For Religious Ceremony

While it might seem that the Supreme Court's Obergefell decision last June mooted the many pending cases seeking to make inroads into now invalid bans on same-sex marriage, the Detroit News reported yesterday on a lawsuit that shows this is not universally so.  A year ago, Detroit minister Neil Patrick Carrick filed a lawsuit in Michigan federal district court challenging two Michigan statutes which at that time effectively fined clergy for performing same-sex marriages. (See prior posting.) MCL Sec. 551.14  imposes a $500 penalty on any member of the clergy or other person who "knowingly joins any persons in marriage" in violation of Michigan law. MCL Sec. 551.106 provides that : "Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license ... shall be adjudged guilty of a misdemeanor" and fined $100 or sentenced to 90 days in jail.

The complaint (full text) in Carrick v. Snyder, (ED MI, filed 1/12/2015). alleged that these provisions violate the 1st Amendment free exercise and expressive association rights of clergy whose faith and religious beliefs allow them to perform marriages that are not authorized by civil law.  In May 2015, the district court entered an order holding the case in abeyance as the Supreme Court considered the issue of same-sex marriage.  In September, after the Supreme Court's Obergefell decision, the district court reactivated the case (Order lifting stay).  While the challenged statutory provisions no longer totally bar same-sex marriages, they still threaten clergy with fines if they "join in marriage" a couple that has not obtained a marriage license.  On December 8, the district court, seeking to avoid the constitutional question, issued an Order (full text) calling for additional briefing on whether these penalties under state law apply to "purely private ceremonies that are not intended to give legal effect to a marriage."

Plaintiff's attorney pointed out the importance of the issue to "elderly or widowed couples who want to marry, but are afraid they will lose their Social Security benefits if they are legally wed."

European Court Says Switzerland Need Not Recognize Underage Religious Marriage of Afghan Nationals

In Z.H. and R.H. v. Switzerland, (ECHR, Dec. 8, 2015), the European Court of Human Rights in a Chamber Judgment held that Switzerland was not required for asylum purposes to recognize the religious marriage between first cousins, entered when the bride was only 14 years old.  The religious marriage between the two, who are Afghan nationals, would have been illegal in Afghanistan because a woman must be at least 15 years old to marry there.  The religious marriage was contracted in Iran where the couple was living illegally, but it was not registered with Iranian authorities. The couple subsequently applied for asylum in Switzerland which they had entered illegally from Italy. Refusing to recognize them as husband and wife, authorities removed the husband to Italy.  However he soon returned illegally to Switzerland where apparently then Switzerland decided to recognize the marriage once the woman turned 17. The European Court did not treat this as mooting the appeal to it of Switzerland's initial decision.

Britain's Law Commission Studies Possible Reform of Marriage Laws

Yesterday Britain's Law Commission published a 97-page background paper that lays the groundwork for possible reform of the country's marriage laws.  The publication, Getting Married: A Scoping Paper, highlighted two key policy areas that need examination in any reform: (1) whether non-religious organizations or independent celebrants should be able to conduct marriage ceremonies; and (2) how far the rules for entering civil partnerships should mirror the rules for marriage. Law & Religion UK has more on the Law Commission's report.

Pope Francis Reforms Church's Annulment Process

As reported by CNN and Vatican Radio, Pope Francis today issued two Apostolic  Letters motu proprio (by the Pope's own initiative) introducing major changes in the Church procedures for annulling marriages. One of the letters, Mitis Iudex Dominus Iesus (full text in Latin and Italian) reforms the Code of Canon Law of the Latin Church, while the other, Mitis et misericors Iesus (full text in Latin and Italian) reforms the Code of Canon Law for Oriental Churches. According to CNN, the documents make three major changes in the annulment process:  (1) they eliminate a second review by a cleric before a marriage can be nullified; (2) they give bishops the ability to fast-track and grant the annulments themselves in certain circumstances, for example when spousal abuse or an extramarital affair has occurred; and (3) they provide that the annulment process should be free, except for a nominal fee for administrative costs, and should be completed within 45 days.

7th Circuit: Rule Preventing Former Prison Employee From Marrying Inmate Is Unconstituitonal

In Riker v. Lemmon. (7th Cir., Aug. 14, 2015), the U.S. 7th Circuit Court of Appeals held that prison authorities had failed to adequately justify their refusal to allow Rebecca Riker, a former food services employee at an Indiana prison, a one-time visit in order to marry inmate Paul Vest who is serving a 50-year sentence for robbery.  Riker met Vest when she was employed at the prison and Vest worked as a prisoner under her supervision. Riker left her job when it was discovered that she had a romantic relationship with Vest, which included sexual intercourse in a walk-in cooler at the facility. Relying in part on the U.S. Supreme Court's 1987 decision in Turner v. Safley, the 7th Circuit said in part:

The right to marry includes the right to select one’s spouse. See Obergefell, 135 S. Ct. at 2599 (noting “that the right to personal choice regarding marriage is inherent in the concept of individual autonomy” and that there is dignity in individuals’ “autonomy to make such profound choices”). The proper inquiry, therefore, is whether Ms. Riker was prohibited from marrying the spouse of her choosing. Because Ms. Riker has not been left with any alternative means of exercising her right to marry Vest, it is clear that the burden on that right was not minimal. ...

The Department also submits that the prohibition of Ms. Riker’s marriage is necessary to serve as a deterrent to current employees. It submits that “[t]he policy communicates to IDOC employees that if they begin an inappropriate relationship with an offender while working at an IDOC facility, they will not only be held accountable but also will be prevented from seeing the inmate for as long as he or she is incarcerated.” The Department has not provided any evidence, however, to support its contention that prohibiting Ms. Riker’s marriage acts as a deterrent or that such deterrence is necessary.

National Law Journal reports on the decision.

Judge Orders Marriage and Writing Bible Verses As Conditions of Probation

KLTV News reported last week on the July sentencing hearing in Smith County, Texas of  Josten Bundy for assaulting his girlfriend Elizabeth Jayne's former boyfriend. The two got into a fight when the former boyfriend said disrespectful things about  Elizabeth.  At the sentencing hearing, Judge Randall Rogers said he would grant probation instead of 15 days in jail if Bundy married Jayne within 30 days.  The probation terms also included writing Bible verses and getting counseling.  Yesterday Americans United released a letter (full text) that it sent to Judge Rogers arguing that the probation terms violate the Establishment Clause and the right to privacy.

UPDATE: The Freedom From Religion Foundation announced that on Aug. 13 it filed a formal complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.

Rights Group Urges Burma's President To Reject Parliament's Buddhist Women's Marriage Law

In a July 9 statement, Human Rights Watch called on Burma's President Thein Sein to refuse to sign the Myanmar Buddhist Women’s Special Marriage Law. The law was passed by Burma's Parliament in a joint session on July 7 by a vote of 524 to 44, with 8 abstentions.  The final version of the bill has not been made public, but an English translation of a 2014 draft of the bill is available online. According to Human Rights Watch:

The bill targets Buddhist women who marry – or seek to marry – non-Buddhist men and introduces vaguely defined acts against Buddhism as grounds for divorce, forfeiture of custody and matrimonial property, and potential criminal penalties....

The law permits the township (district level) registrar to publicly display a couple’s application for marriage for 14 days, and permits any objections to the marriage to be taken to local court....

The law also requires a non-Buddhist husband to respect the free practice of his spouse’s Buddhist religion, including displaying Buddhist imagery and statues, and engaging in Buddhist ceremonies. He must refrain from “committing deliberate and malicious acts, such as writing, or speaking, or behaving or gesturing with intent to outrage feelings of Buddhists.” Violations of these provisions are grounds for divorce, and in such a case the non-Buddhist husband would be forced to give up his share of jointly owned property, owe his wife compensation, and be denied custody of the children.

Alabama Bill To Eliminate Marriage Licenses Dies In House Judiciary Committee

The Daily Caller reported yesterday that in Alabama SB 377 previously passed by the Alabama state Senate to eliminate marriage licenses died in the House Judiciary Committee last week. As previously reported, the bill which would have replaced issuance of licenses with marriage contracts entered into and recorded by the couple was seen in part as a way of dealing with religious objections by some probate court employees to issuing licenses to same-sex couples. One Republican member of the House Judiciary Committee who voted against the bill explained: "It didn’t make sense to me to make such a sweeping change about how we do marriage, just because of concern about some probate judges in a bit of a spot."

Turkey's Constitutional Court Invalidates Ban On Religious Marriage Without Civil Certificate

Anadolu Agency and Hurriyet Daily News report on the May 27 decision by Turkey's Constitutional Court striking down Sec. 230 paragraphs 5 and 6 of the Turkish Criminal Code that prohibit arranging or conducting a religious marriage ceremony without obtaining a civil marriage as well. Four of the 16 judges dissented.  Stressing the constitutional protection for freedom of religion and conscience, the court majority said that since it is legal for couples to live together without being married at all, equal treatment requires allowing couples to live together with only a religious ceremony.  Reacting, officials expressed concern that the decision will encourage the illegal marrying off of children and the erosion of the position of women. The case arose when a lower court in Erzurum province referred a case to the Constitutional Court instead of convicting an imam and the couple he married.

Atheists Can Now Perform Marriages In Minnesota County; Challenge Is Moot

In Atheists for Human Rights v. County of Washington, Minnesota, (D MN, May 13, 2015), a Minnesota federal district court dismissed as moot a constitutional challenge to Washington County's refusal to accept marriage celebrant credentials issued by Atheists for Human Rights to Rodney Michael Rogers because AFHR did not profess to be a religion. The court said in part:

Washington County has clearly and unequivocally changed its allegedly wrongful practice. The County has not gone through a formal amending process because there was no formal written policy in place. Rather, Washington County’s prior practice was based on the advice of Washington County’s legal counsel. The County’s legal counsel has clearly and definitely changed that advice.

According to a report on the decision by the Minneapolis Star Tribune:

The county’s change in policy came four days after the Star Tribune published an article about the suit and reported that Hennepin, Ramsey and Anoka counties certified atheists to conduct weddings. Meanwhile, the county had registered people belonging to groups with tongue-in-cheek names, including, “The Church of the Latter Day Dude” and the “Church of the Flying Spaghetti Monster.”

South African Court Awards Maintence and Child Support To Woman Divorced Only Under Islamic Law

A South African court has issued a precedent-setting ruling by awarding interim maintenance to a woman who was married and divorced under Islamic religious law, but without precedures required by South African civil law. Her husband divorced her by pronouncing a single valid talaq.   IOL News reports that in a ruling from the bench, a Durban High Court judge ruled that the cournty's Marriage Act applies.  Judge Fikile Mokgohloa awarded the woman the equivalent of $1650 (US) per month as maintenance for her and the two children and ordered the husband to pay reasonable education cost for the children not to exceed $400(US) per child per month.  The husband was also ordered to pay the equivalent of $1225(US) toward the wife's legal costs. The husband argued that under Islamic law, he was only required to pay maintenance for the wife, and then only for approximately three months (the mandatory waiting period of iddah).  The wife is now proceeding with a full civil divorce action.

Indian Court Says Child Marriage Act Trumps Muslim Personal Law

Z News reports that in India, the Madras High Court has held that the Prohibition of Child Marriage Act 2006 takes precedence over the Muslim Personal Law (Shariat) Application Act 1937, upholding an order of a district child welfare officer preventing the marriage of a 17-year old girl.  The judge rejected the argument that Muslim personal law could be applied.  Under Shariat law, a girl may marry at age 15 when she is presumed to attain puberty. Meanwhile, a hearing is scheduled today in a public interest lawsuit filed in the Madras High Court in which petitioner is seeking an order to prevent state government officials from interfering in the marriage of Muslim girls.

USCIRF Criticizes Pending Legislation In Burma

The U.S. Commission on International Religious Freedom in a press release yesterday strongly condemned a package of race and religion bills being considered by Burma's Parliament. USCIRF argued that the bills restrict religious freedom and discriminate against non-Buddhists, saying:

The Religious Conversion Bill would force those seeking to convert to give to the newly created Registration Boards an extensive list of personal information, answer intrusive questions, and wait 90 days for approval.

The Interfaith Marriage Bill imposes restrictions on marriages between non-Buddhist men and Buddhist women, including a 14-day waiting period during which time anyone can object to the marriage, and the court reviewing the objections has the power to deny the marriage.  Non-Buddhist men are denied numerous rights in the case of divorce and face criminal penalties if they ask their Buddhist wife to convert.  Under the bill, non-Buddhist men also bear most of the financial and/or criminal penalties, including prison sentences.  

Proposed Oklahoma Bill Would Eliminate Marriage Licenses

Oklahoma State Representative Todd Russ has introduced a bill into the Oklahoma legislature that would create a unique response to federal decisions requiring the issuance of marriage licenses to same-sex couples.  As reported by KSWO News, his bill would do away with marriage licenses.  Instead, under HB 1125 couples may be married in a religious ceremony, after which the member of the clergy performing the ceremony would file a "certificate of marriage" with the clerk of court.  Individuals who do not want to be married in a religious ceremony could file an "affidavit of common law marriage" with the clerk of court. Under the bill, judges would no longer be able to perform marriage ceremonies. The bill retains current language limiting marriage to opposite-sex couples, even though the 10th Circuit has invalidated that limitation. (See prior posting.)  Rep. Russ sees the bill as restoring marriage "to what it was supposed to be and was originally a holy matrimony and a very solemn and spiritual vow."  Any progress of the bill through the legislature may be followed here.