Preferences for clergy in solemnization of marraige

[Volokh, Eugene]

        It seems to me that the *presumptive* norm under the Establishment
Clause ought to be

        (1) no preferences for organized religion over individualistic
religion (cf. generally Larson v. Valente; more on point, Wilson v. NLRB,
920 F.2d 1282, 1285-855 (6th Cir. 1990); Pielech v. Massasoit Greyhound,
Inc., 423 Mass. 534 (1996)), and, more controversially,

        (2) no preferences for religious people, leaders, institutions, or
beliefs over secular people, leaders, institutions, or beliefs (cf. Welsh;
Texas Monthly v. Bullock plurality).

        Now I recognize that sometimes one or the other of these
presumptions, especially #2, might be rebutted because of some showing of
pressing need; I'm not sure about this (hence the "might"), but I think a
strong case can be made in some situations -- for instance, the
clergy-penitent privilege.

        But here I don't quite see any such pressing need:  Why not allow
marriages to be solemnized by any person whom the couple chooses -- a
religious leader, a secular spiritual leader, or just a respected friend --
and who is willing to verify the license, age, etc., at some legal risk to
himself if he fails to verify it properly?  This would eliminate the
discrimination, while still serving whatever needs the law serves.  A good
analogy is Fed R Evid 603, which instead of requiring a religious oath,
demands only that "every witness shall be required to declare that the
witness will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the witness' conscience and impress the witness'
mind with the duty to do so."

        Am I missing something here?  Is there really some powerful reason
for giving special preferences to people because of their religiosity, and
because of their adherence to organized as opposed to individualistic
religion?

        Eugene

> -----Original Message-----
> From: David E. Guinn [SMTP:davideguinn at HOTMAIL.COM]
> Sent: Monday, January 28, 2002 2:55 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Preferences for clergy in solemnization of marraige
>
> ----- Original Message -----
>
>       From: Volokh, Eugene <mailto:VOLOKH at MAIL.LAW.UCLA.EDU>
>
>               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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