Discrimination in favor of clergy

Volokh, Eugene VOLOKH at mail.law.ucla.edu
Thu Jun 1 20:54:23 PDT 2000

        I do not for a moment want to pretend that discrimination in favor
of clergy in solemnizing marriages is a Big Deal.  As preferences for
religious institutions or persons go, it's a very small one.  I don't like
the idea of putting clergy statutorily on par with government officials -- I
think that does establish religion, in the sense of placing religious
persons and institutions at a higher level than others -- but it's hardly a
big deal.

                At the same time, it seems hard to see what important
government purpose is served by this preference.  I don't think the
preference is needed to *allow* marriages to be presided over by a religious
institution or its representative; the same purpose could be served by
ignoring who presides over a marriage, and simply requiring that people
register the marriage with some government official or designate.  Likewise,
it could be served by allowing solemnization by anyone whom the parties
choose, and simply requiring that this person perform whatever clerical
tasks (if any) the state requires of the solemnizer.  If someone *does* want
to have his marriage solemnized by Richard Dawkins, the spiritual heirs of
Ayn Rand, their own revered parent, or for that matter some respected
friend, what real harm is there to any material government interest?  Surely
the religious preferences is not at all necessary.

                What to do then, given the tiny discrimination and the still
tinier reason for the discrimination?  My view is that the Establishment
Clause is best interpreted as setting up at least a strong presumption
against any discrimination in favor of religion or religiosity.  This
presumption does not seem to be rebutted here.

                Note also the tricky mechanics of having preferences for
religion generally without getting into discrimination among religions.
Some groups, apparently, do not practice solemnization by ministers, so some
statutes have special exemptions for those groups:  Vermont, for instance,
specifically names Quakers, the Christadelphian Ecclesia, and the B'ahai;
Indiana feels obligated to have special exemptions for Quakers, the B'ahai,
Mormons, Muslims, and German Baptists.  The very enumeration of groups
strikes me as not quite right in our system of religious equality.  It's
possible to avoid this by providing a blanket rule that marriages may be
solemnized according to the practices of any religious society, but what
about religious people who do not see their religions as part of an
established group?  Thomas v. Employment Division tells us that these
literally nonestablished religions are to be treated the same as more
organized ones.  So then we get to the point that the marriage may be
solemnized in accordance to any sincerely held religious belief of the
parties; and then why not extend this to any sincerely held belief, period,
of the parties?

                The closest analogy I could find is the D.C. Code, which
comes close to this by providing that that "marriages of any religious
society which does not by its own custom require the intervention of a
minister for the celebration of marriages may be solemnized in the manner
prescribed and practiced in any such religious society, the license in such
case to be issued to, and returns to be made by, a person appointed by such
religious society for that purpose," and then defining "religious" to
include both theistic beliefs and "a devotion to some principle, strict
fidelity or faithfulness, conscientiousness, pious affection, or
attachment."  I'd just go further and say that people can choose whomever
they want to solemnize the event.  Surely in practice this is what the
statute would indeed end up meaning.

Stuart Buck writes:

>       RE: FFRF v. LeeanEugene said: "It is an interesting question whether
> =
>       laws that only allow the clergy and government officials to
> solemnize =
>       marriages violate the Establishment Clause.  I'm inclined to say
> that =
>       they do, since they treat clergy better than other similarly
> situated =
>       private persons."
>       I'm puzzled.  I don't mean to sound naive, but just who are these =
>       similarly situated private persons?  Who, for the atheist or
> secularist, =
>       could possibly play the same role as the priest/rabbi/minister does
> for =
>       the religious believer?    Noam Chomsky?  Stephen Jay Gould?
> Richard =
>       Dawkins?  Aren't we in fact just treating religious people equally
> by =
>       allowing their marriages -- one of the most solemn commitments of
> their =
>       lives -- to be presided over by the religious institution that they
> view =
>       as authoritative?
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