Preferences for clergy in solemnization of marraige

[Volokh, Eugene]

>       Utah Code 30-1-6 states that marriage certificates may be solemnized
> by only a limited set of people, including clergy who are "in regular
> communion with any religious society," but excludes clergy who are
> ordained "through application over the Internet or by mail."
>
>       The court upheld this rule under the Free Exercise Clause, the
> Establishment Clause, and substantive due process, but struck it down
> under the Equal Protection Clause because it could not "conceive of any
> ground upon which" the distinction between "ministers whose applications
> were received over the Internet or through the mail, and ministers whose
> applications were received via fax, telephone, or in person by another . .
> . minister" "could be rationally related to the State's interest in
> protecting the integrity of marriage."  Universal Life Church v. Utah,
> 2002 WL 87560 (D. Utah Jan. 17).
>
        More broadly, though, I wonder:  Should the statute survive
Establishment Clause scrutiny?  (The plaintiff didn't fully press this
theory, but the court did confront it and pooh-pooh it.)  First, while the
preference for religious practices is modest, the justifications for it are
very slight as well.  But second, there seems to be a discrimination here
among religions, between those religions that involve "regular communion
with . . . religious society" and those that are essentially purely
individualistic.  Any thoughts on this?
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