By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-sex Marriage

• Publication year: 2014

By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage

Andrew C. Stevens

BY THE POWER VESTED IN ME? LICENSING RELIGIOUS OFFICIALS TO SOLEMNIZE MARRIAGE IN THE AGE OF SAME-SEX MARRIAGE

Abstract

State recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment. For example, all states license religious officials to solemnize civil marriage, a ceremony required for a valid marriage in all states. Could a state that has recognized same-sex marriage require its licensed religious officials to administer their licenses in such a way as not to discriminate against same-sex couples? Or would such a law violate the free exercise rights of that licensed religious official? Or, conversely, is the very practice of state licensing of religious officials to solemnize and enact civil marriage an impermissible establishment of religion in violation of the Establishment Clause?

This Comment argues that (1) the Free Exercise Clause, as currently interpreted, does not protect licensed religious officials from a law forbidding them to discriminate against same-sex couples and (2) the typical marriage solemnization ceremony by a licensed religious official violates the Establishment Clause.

This Comment also presents several solutions to remedy these paradoxical outcomes under the law. First, as to the Free Exercise Clause issue, this Comment proposes both statutory and judicial remedies that would exempt licensed religious officials from laws that prohibit discrimination in exercising marriage solemnization licenses. Second, as to the Establishment Clause issue, this Comment proposes narrow time, place, and manner restrictions on religious weddings and consecrations of civil marriages that would remedy the Establishment Clause violation without requiring states to strip religious officials of their licenses to solemnize civil marriage.

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Introduction..............................................................................................981

I. Licensing Religious Officials to Solemnize Civil Marriage 986

A. State Regulation of Marriage.....................................................986
B. History of Religious Solemnization of Civil Marriage...............987

II. Clergy Free Exercise and the First Amendment.....................988

A. State Recognition of Same-Sex Marriage ................................... 988
B. No Free Exercise Exemption for Licensed Religious Officials ... 990

III. An Impermissible Establishment of Religion............................997

A. The Establishment Clause: A Brief Survey.................................997
B. A Licensed Religious Official Is Not a State Actor ................... 1000
C. An Impermissible Delegation of Governmental Authority....... 1003
D. The Historical Practice Inquiry................................................ 1006

IV. Toward the Protection of a Robust Religious Liberty.......1009

A. The Free Exercise Problem ...................................................... 1009

1. Statutory Remedies............................................................. 1009
2. Judicial Remedies............................................................... 1010

a. An Expanded Ministerial Exception ............................ 1010
b. The Expressive Association Doctrine .......................... 1013

B. "Unfusing" the Establishment Problem................................... 1014

Conclusion................................................................................................1019

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Introduction

State recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment to the U.S. Constitution. For example, all states employ sophisticated and nuanced marriage licensing regimes that license religious officials to solemnize civil marriages, a ceremonial act required for a valid marriage in all states.¹ A growing number of states have recognized same-sex marriage while protecting their LGBT citizens from discrimination on the basis of sexual orientation.² But, in those latter states, some religious communities and officials refuse to marry same-sex couples.³ Many same-sex couples regard this refusal as discrimination.⁴

Could a state require its licensed religious officials to administer their marriage licenses in accordance with the state's nondiscrimination laws, and remove their licenses to marry anyone if they refuse? Would such a requirement violate the First Amendment free exercise rights of the religious official or of the official's religious group? Such a law could force decisions by religious officials similar to those of Catholic churches in Illinois, Massachusetts, and Washington, D.C., which terminated their adoption services once those jurisdictions passed laws forcing the Church to consider same-sex couples as potential adoptive parents.⁵

Alternatively, could a state go further and simply forbid religious officials to perform marriages altogether as a mandate of the First Amendment Establishment Clause? The Establishment Clause forbids certain delegations of government authority to religious officials as a violation of the principle of separation of church and state.⁶ Yet state regimes that license religious officials to enact civil marriage appear to do just that: delegate government authority to religious officials.

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Has a state created an impermissible establishment of religion when it licenses religious officials to solemnize civil marriages—an unconstitutional condition now finally exposed by the conflicts over same-sex marriage? If so, all state-given licenses would therefore need to be stripped from men and women of the cloth. Is this the beginning of another brave new world—the disestablishment of marriage?

This Comment's answer is no. Instead, this Comment first argues that while the Free Exercise Clause, as currently interpreted, does not entitle a religious official to discriminate against same-sex couples in the administration of his or her license according to his or her conscience, other legal remedies, based on statutes and judicial exemptions, can offer that protection. Second, this Comment argues that the typical solemnization ceremony by a religious official does violate the Establishment Clause, but remedying this violation does not require the removal of all solemnization licenses from religious officials. Instead, the implementation of narrow time, place, and manner restrictions that distinctly separate the civil and spiritual components of a religious wedding ceremony is all that is required. In coming to these conclusions, this Comment thus recognizes and navigates the peculiar tension presented between the two Religion Clauses of the First Amendment.⁷ On the one hand, the Free Exercise Clause urges the protection of religious officials in the exercise of their licenses. On the other hand, the Establishment Clause urges that those licenses be taken away.

In preserving the status quo of state licensing of religious officials to solemnize civil marriage, this Comment does not adopt a strict separation of church and state approach. A strict separationist approach in marriage argues that no religious officials should be licensed to marry couples whatsoever, leaving legal participation and authority over marriage exclusively in the hands of the state.⁸ Churches would be free to have their own ceremonies, governed according to their faiths, but their ceremonies would carry no legal relevance.⁹ Strict separationists argue that this is either (1) constitutionally required by the

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Establishment Clause or (2) the simplest and most effective solution to our current debates over marriage.¹⁰

Responding to the first argument, this Comment demonstrates that the Establishment Clause does not require the adoption of a strict separationist approach. Instead, this Comment shows that while the typical religious wedding ceremony does violate the Establishment Clause, narrow time, place, and manner restrictions on such ceremonies are all that is required to remedy the violation. These narrow restrictions would require two separate ceremonies at two different times and places, so as to distinctly separate the civil and religious aspects of marriage.

More significantly, however, as to the second argument, a strict separationist approach does not adequately appreciate the interests of religious individuals and communities in having civil marriages solemnized by officials of their faith. Not only do many religious adherents believe that marriage encompasses both spiritual and civil responsibilities, but the solemnization of a religious couple's wedding by an official of their faith has deep spiritual significance for the individuals being wed, the officiate, and the larger religious community. Thus, the wedding solemnization by a religious official represents both of these commitments and beliefs, spiritual and civic. To adopt a strict separationist approach is to do harm to this understanding of marriage for all three of these religious actors. Indeed, it is to harm the very exercise of their religion.

For example, for the religious individuals being married, the opportunity to have their marriage solemnized by an official of their faith is not merely a matter of convenience; it is a spiritual recognition of the multifaceted and powerful commitments that come with their marital vows. For the religious official who marries them, it is not merely a matter of pride or power; it is the opportunity to make sacred even the civil responsibilities of marriage for his congregants and to impress upon them the weight of the institution. Likewise, for the larger religious community, it is not merely a matter of tradition; it is the commitment to an understanding of marriage and citizenship that helps to define and hold together that very...