On October 5, 2012, you requested an opinion as to whether a self-uniting marriage
between Sherry and NH is valid under Pennsylvania law. You also asked whether a self-uniting
marriage is valid for Sherry’s legal name change.
Although the Pennsylvania Supreme Court has not ruled on the issue, the weight of
authority supports the conclusion that the self-uniting marriage of Sherry and NH
is valid under Pennsylvania law. Accordingly, the name change is likewise valid under
Sherry seeks spousal benefits on the record of the NH, whom she married in a “self-uniting”
ceremony on October 22, 2011 in Orangeville, Pennsylvania. Both were previously married
to others and submitted proof of divorce. They also submitted a copy of their Certificate
of Marriage, executed pursuant to a Declaration of Authorization dated
October 20, 2011 issued by the Clerk of the Orphans’ Court, Columbia County, Pennsylvania,
and a copy of their wedding announcement. The Certificate of Marriage contains the
signatures of Sherry and NH as well as two witnesses. Sherry also answered the agency’s
questions in a Statement of Claimant or Other Person, explaining that the wedding
ceremony was “self-uniting;” that three individuals were in attendance other than
the bride and groom; and that the parties recited vows and exchanged rings. She also
confirmed that neither she nor NH were Quakers, nor were they part of any other religious
sect. NUMI records show a change of name for Sherry.
Since common law marriage was prospectively abolished in Pennsylvania in 2005,  a valid Pennsylvania marriage requires a license and a solemnizing ceremony with
witnesses. Therefore, the issue that must be addressed is whether Sherry and NH’s
solemnizing ceremony was adequate under Pennsylvania law even though it was not conducted
by a third-party authorized to perform marriages in Pennsylvania, and even though
the ceremony had no relationship to a religious practice. The best reading of Pennsylvania
law is that the self-uniting ceremony was adequate to render the marriage valid.
The issue of the ceremony and the license are somewhat intertwined, because Pennsylvania
provides for a specific form of license for self-uniting marriages, on the one hand,
and a separate form of license for marriages conducted by authorized third parties,
on the other. Under Pennsylvania’s Marriage Act, 23 Pa. Con. Stat. Ann. § 1101, et.
seq., a marriage license may issue from any county in the Commonwealth for a ceremony
that takes place anywhere in the Commonwealth, 23 Pa. Con. Stat. Ann. §§ 1104, 1301(b);
the county official shall issue the license if it appears from properly completed
applications on behalf of each of the parties that there is no legal objection to
the marriage. 23 Pa. Con. Stat. Ann. § 1307.
Although the primary form of license is crafted to permit a third party authorized
by law to solemnize the applicants’ marriage within the specified (60 day) time period,
23 Pa. Con. Stat. Ann. § 1310, Pennsylvania law also provides for a second form of
license for cases in which “the parties intend to solemnize their marriage by religious
ceremony without officiating clergy.”
23 Pa. Con. Stat. Ann. § 1502. In such cases, the Clerk of the Orphans’ Court issues
a Declaration of Authorization attesting that legal evidence was furnished that satisfied
the Clerk that there was no legal impediment to the marriage. 23 Pa. Con. Stat. Ann.
§ 1502(a). The Declaration attaches two certificates, to be executed after the ceremony
(and one copy recorded), in which the parties to the marriage certify that they united
themselves in marriage in the stated Pennsylvania location. 23 Pa. Con. Stat. Ann.
§ 1502(b). The certificates are to be countersigned, as well, by two witnesses who
certify that they were present at the solemnization ceremony. Id.
In this case, Sherry has presented an executed Certificate of Marriage containing
(1) a Declaration of the Clerk of the Orphans’ Court attesting that he was satisfied
there was no legal impediment to the parties’ marriage and providing the license number
he assigned, and (2) an executed certification, signed by Sherry and NH, stating that
the parties united themselves in marriage on October 22, 2011; specifying the location
of the marriage ceremony; and containing the signatures of two witnesses to the solemnization
ceremony. The self-uniting marriage, therefore, was licensed and certified in accordance
with Pennsylvania law.
While the form of license itself makes no reference to any particular form of self-uniting
ceremony and, in particular, makes no reference to the religious nature of a self-uniting
ceremony, the authority for issuance of the self-uniting Declaration of Authorization
does reference a religious ceremony. The statute states that a Declaration of Authorization
is issued for marriages in which the “parties intend to solemnize their marriage by
religious ceremony without officiating clergy.” 23 Pa. Con. Stat. Ann. § 1502(a).
Also relevant is Section 1503, “Persons qualified to solemnize marriages,” which enumerates
those third parties who are authorized to solemnize marriages (including Commonwealth
judges and retired judges, Pennsylvania-based federal judges, mayors of cities or
boroughs of the Commonwealth, and ministers, priests, and rabbis of any regularly
established church or congregation). 23 Pa. Con. Stat. Ann. § 1503(a). Unlike most
states, Pennsylvania law separately provides for ceremonies under the rules of religious
organizations (such as Quakers) that do not utilize ministers or other leaders. Section
1503(b) provides that “[e]very religious society, religious institution or religious
organization in this Commonwealth may join persons together in marriage when at least
one of the persons is a member of the society, institution or organization, according
to the rules and customs of society, institution or organization.” 23 Pa. Con. Stat.
Ann. § 1503(b). Sections 1502(a) and 1503(b) thus contain references to a religious
On the other hand, the Certificate of Marriage provision for self-uniting marriages
makes no reference to a religious ceremony. Section 1504(b), “Marriages performed
by parties,” states: “If the marriage was solemnized by the parties themselves, the
original certificate shall be signed by the parties to the marriage, attested by two
witnesses and retained by the parties contracting the marriage. . . .” 23 Pa. Con.
Stat. Ann. § 1504(b). And the Certificate of Marriage itself, as described in 23 Pa.
Con. Stat. Ann. § 1502(b) and submitted by Sherry , likewise makes no reference to
a religious ceremony.
The Marriage Act thus arguably creates some ambiguity about whether there is a required
religious component for self-uniting marriage ceremonies. As explained below, however,
courts have read the Marriage Act to authorize self-uniting ceremonies regardless
of whether or not the ceremony is conducted pursuant to the customs of a religious
In 2007, the American Civil Liberties Union (ACLU) brought suit in federal court on
behalf of Plaintiffs Mary and David , whose request for a self-uniting marriage license
had been denied by the Register of Wills for Allegheny County.  When Plaintiffs requested a self-uniting marriage license, the Register inquired
as to whether either was a member of a religious organization that had no officiantes
or clergy; the Register denied Plaintiffs a self-uniting license when they answered
in the negative. The ACLU sought a temporary restraining order (TRO) on the ground
that the Register’s interpretation of the Marriage Act as authorizing a self-uniting
marriage license for couples marrying in religious ceremonies pursuant to the customs
of certain religious organizations, but not authorizing such licenses for couples
wishing to marry themselves without a link to such religious organizations, violated
the Establishment Clause of the United States Constitution. Honorable Joy Flowers
Conti, United States District Judge, convened a hearing on the record.  She explained that in light of the Establishment Clause issues that the case presented,
it was her duty to construe the statute, if possible, to avoid a constitutional question.
 She found that it was a longstanding understanding that Pennsylvania permitted
a statutory marriage where the couple self-unites without a religious ceremony.  . While a contrary interpretation might be within the “realm of possibility,”  and while the parties might appropriately seek a more definitive interpretation
of the statute from the state courts, in her view, the statute and the practices under
the statute were sufficiently clear.  She issued a TRO holding that “[s]elf-uniting marriage licenses have been issued
in Pennsylvania under the [Marriage Act] for decades, without regard to the religious
or nonreligious affiliations of the parties seeking the license.”  K~ Judge Conti directed the Register to issue a marriage license to Plaintiffs forthwith. 
The record in K~ revealed that at the time the parties sought a TRO, the practices among the various
county Registers were “haphazard,” with some counties routinely granting self-uniting
marriage licenses regardless of any religious component and others not. 
Judge C~’s decision was in the nature of a TRO rather than a final decision on the
merits, and although she invited the parties to submit post-TRO briefing as to whether
the federal court should abstain from adjudicating the merits while the parties pursued
the matter in state court,  counsel for the Allegheny County Register opined that no such further proceedings
would be necessary because the Register intended to “comply with [the Court’s] order
from this day forward.” 
After the federal court issued the TRO in K~ in September 2007, we can find no evidence of further legal challenges. Moreover,
the practices of the various Pennsylvania counties with respect to issuing self-uniting
marriage licenses seems to have largely settled after K~, with the Registers issuing self-uniting marriage licenses to couples without regard
to religious affiliation. For example, the Montgomery County website states that
an applicant for a marriage license does not need a licensed minister or priest to
perform the marriage ceremony, adding that
“Pennsylvania has a provision in the Marriage Act that recognizes a marriage performed
without officiating clergy. This is referred to as a self-uniting license. Two witnesses
are required.” 
In order to obtain a self-uniting license, the Montgomery County website further explains,
one simply “inform[s] the clerk that you want a self-uniting license at the time you
apply.”  The Chester County website is similar, but is accompanied by a warning of sorts. It
confirms that an applicant for a marriage license does not need a minister, judge
or other officiant to perform the marriage ceremony.  It does, however, refer the reader to a policy statement indicating that if a person
chooses to be married by someone other than those identified in 23 Pa. Con. Stat.
Ann. § 1503, the burden of proof regarding legality is on the individuals should a
future issue arise. Other county websites also contain a “disclaimer of liability”
with respect to their officials’ issuance of licenses to persons who marry in a ceremony
conducted by a person other than those identified in Section 1503.  The county websites thus suggest that the practice currently is to provide self-uniting
licenses without regard to religious affiliation, but also to insulate the issuing
officials from liability should the ceremony subsequently be found not to comport
with legal requirements.  Thus, the post-K~ landscape, while not entirely pellucid, is nonetheless increasingly uniform.
State court decisions further reinforce the principle that religious ceremonies are
not required for a valid self-uniting marriage. The state court ruling that prospectively
abrogated common law marriages in Pennsylvania described Pennsylvania statutory law
as authorizing couples to “marry themselves.” See PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1280 (Pa. Commw. 2003). In PNC Bank, the Commonwealth Court explained
that once a license is obtained under the Marriage Act, the marriage may be solemnized
by enumerated classes of third parties or, in the “alternative, couples have the option
of solemnizing their marriage themselves after obtaining certification that no legal
impediment to marriage exists.” Id. (citing 23 Pa. Con. Stat. Ann. § 1502). The “only differences,” the Commonwealth
Court stated, between common law marriage (which it was abrogating) and self-uniting
licensed marriages were the “requirement of witnesses and the licensing procedure.” Id. (emphasis supplied). By stating that the “only differences” between self-uniting
statutory marriages and common law marriages were the “requirement of witnesses and
the licensing procedure,” the Commonwealth Court in PNC Bank implicitly rejected the
notion that religious elements were necessary for self-uniting marriages to be valid
under the Marriage Act: common law marriages required an exchange of vows but not
necessarily in a religious setting. See generally, Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998).
Likewise, as Judge Conti found in K~,  authoritative treatises interpreting Pennsylvania law also support the view that
self-uniting marriage ceremonies need not be conducted pursuant to the customs of
particular religious organizations. For example, the 2012 version of the Pennsylvania
Law Encyclopedia states that there is “no necessity that the ceremony be performed
by or in the presence of any religious or civil officer, and the Marriage Act permits
solemnization by the parties themselves[.]”  Thus, the weight of Pennsylvania authority supports Judge C~’s conclusion that self-uniting
marriages are authorized by the Marriage Act regardless of the secular or religious
nature of the solemnization ceremony. 
Finally, to the extent the foregoing interpretation of the statute remains subject
to challenge in the absence of a Pennsylvania Supreme Court ruling on point, we believe
it is highly unlikely that the Supreme Court, if confronted with a challenge in the
future, would declare any marriage that proceeded with a self-uniting license and
a duly witnessed secular solemnization ceremony to be invalid. The Commonwealth has
a strong public interest in not invalidating ceremonial marriages entered into in
good faith by the parties. See, e.g., Leroy Roofing Co. v. Workmen’s Compensation Appeal Bd., 327 A.2d 876, 878 (Pa. Commw. 1974). Once the district court ruled in Knelly and
the Allegheny County Register committed, on the record, to issue self-uniting marriage
licenses from that point forward without respect to any religious affiliation of the
applicants, it is difficult to imagine the Supreme Court acting to invalidate marriages ?
presumably somewhat numerous ? that proceeded in reasonable reliance on such licenses.
The public interest in the validity of such marriages would seem to be particularly
difficult to overcome in the present situation, where county officials certified that
there was no legal impediment to the marriage and the risk of fraud or confusion as
to whether the parties intended to become married is negligible, since the marriage
was licensed and witnessed.
It is our opinion that under Pennsylvania law, the marriage between Sherry and NH
is valid. Since the marriage is valid, the name change is appropriate as well.
Eric P. Kressman
Regional Chief Counsel, Region III
By: Jordana Cooper
Assistant Regional Counsel