Preferences for clergy in solemnization of marraige

[Volokh, Eugene]

        David's argument may be powerful in some situations, though I think
that the argument against preferential treatment for organized religion is
still stronger.  (Also, among other things, I am quite troubled by courts
deciding -- as both David's post and Yoder suggests that they would decide
-- which religions are responsible and have a "superior" "lifestyle" to
others.)

        But in any event, I don't quite see why this argument applies
*here*.  David and I agree, I think, that there's virtually no cost in
letting prospective spouses have their marriage be legally solemnized by
whomever they respect enough to choose for this role.  Why isn't at least a
*presumptive* rule of no discrimination in favor of religion, and no
discrimination in favor of organized religion, (a) the right approach, and
(b) sufficient to command the result that I suggest in this case?  Or is
David's concern that any such presumptive rule would create a presumption
that's too strong, and that would be too likely to end up invalidating
accommodations even when some preference for religion is, in David's eyes,
proper?

        Eugene

David Guinn writes:

> I agree the the courts have generally agreed with you on this point.  And
> to a certain extent, I think the government could create a licensing
> system for solemnization of marriage with little harm.
>
> However, it seems to me that as a consequence of this tendency to favor
> individualism, the concept of accomodation has been rendered untenable.
> If religion is simply and only an individual act of conscience (admittedly
> a concept acceptable to some people of faith)  then accommodation falls
> prey to the anarchy argument.  To accommodate one act of conscience means
> you have to accommodate any - even the most outrageous.  Consequently, the
> prediction in Reynolds that law becomes meaningless is endorsed.
>
> However, as I've argued before, if we recognize that laws are based on an
> assertion of utility - that they are enacted to support a social good,
> then recognition of the social dimension of organized religion provides an
> alternative source of non-egocentric judgment of social utility that may
> challenge conventional wisdom of the dominant culture.  Witness the case
> of Smith.  The drug laws presume that use of hallucinogens is harmful (and
> in the dominant, possibly hedonistic cultural context, this assessment may
> be valid.)  However, the use of peyote in the context of the Native
> American Church was not only harmful - it supported a lifestyle that was
> in fact far superior.  Instead of promoting drug abuse, drug abuse (in the
> form of alcoholism) is significantly less in these communities.  On an
> individualist reading the Court was correct.  There is no way to consider
> this social endorsement.  Hence, to avoid everyone who wants to use drugs
> declaring themselves a religion in order to get exception from the law,
> they took the hard line.
>
> In short, adoption of a strict individualist orientation discriminates
> against communal identities.  It, in effect adopts a particular
> theological view that religion is individualistic and volunteristic.  I'm
> not sure that adoption of communal orientation is similarly discriminatory
> give our countries natural bias towards the atomistic individual.  There
> is a conscious effort in many parts of society to protect individual
> conscience.  (Whether this effort always perfectly succeeds is another
> question - but success cannot be the measure on either count.)
>
> David
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