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

By Stevens, Andrew C. | Emory Law Journal, March 1, 2014 | Go to article overview

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


Stevens, Andrew C., Emory Law Journal


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.

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. …

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