Preferences for clergy in solemnization of marraige

[David E. Guinn]

Preferences for clergy in solemnization of marraige----- Original Message ----- 
  From: Volokh, Eugene 
          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?

I recognize that this reflects a level of discrimination - any law does.  But I'm not sure how one avoids this unless you go to the extreme of simply denying all clergy the right to solemize marriages.  Solemization is, in this sense, a state function being deligated to a non-governmental actor in deference to the religious features of marriage.  It is an accomodation.  Nonetheless, the state does expect the clergy to perform certain functions:  making sure the couple have a valid license; making sure they are of legal age; etc.

In this case, to avoid the risk of clothing a charlatan with state authority, they are requiring that the clergy member to answerable to a particular religious authority.  (I assume that a "religious society" would include a legally formed congregation - so we're not talking about favoring a heirarchical denomination.)  To accomplish the same thing, the state could simply license the clergy - but it does seem to me that this alternative is far less intrusive and causes less entanglement.  I don't see why the state can't recognize that most religions are communal, social entities and extend an accomodation to them.  An individualist, ideosyncratic religionist stands in no different relation to the state then any other individual - and if we focus only on the individual we are truly facing the dilema in Reynolds of anarchy - allowing each person to act as a law unto themselves.

David


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