Impact of same-sex marriage rulings on strict scrutiny in religious exemption cases

[W. A. Wildhack III]

Some possibly disjointed thoughts from my minister/chaplain/lawyer brain . .
. 

 

Several in this discussion have used the phrase "withdraw the power to
solemnize civil marriages from churches" or similar language.  I think a
more accurate-even if cumbersome-phrase might be "the power to perform
legally binding civil marriages in the context of a religious ceremony" or
something along those lines.  Many churches have for generations had
liturgies for solemnizing civil marriages or services "for those previously
married in a civil ceremony."  I've officiated at several religious wedding
ceremonies over the years for those who were first married by a state
official (notary public, justice of the peace, etc.) for one reason or
another but who also wanted a "Christian" wedding in a church.  

 

Taking away the "power" to officiate at a legally binding civil marriage
from clergy has absolutely no effect on any authority conferred by a
religious organization on one of its leaders to perform a religious liturgy
that solemnizes a civil commitment between members of that organization or
anyone else who seeks recognition of their commitment to each other from
that religious organization.  The fact that states have chosen to recognize
such ceremonies as legally binding when those relationships comport with
state law is a different matter.

 

Similarly, while the state may apparently be able to compel equal access to
a public accommodation-even if the owners declared it a religious facility
despite its usage (was it an amphitheater in NJ? it's late here
tonight!)-for ceremonies to which the owners object on religious grounds, or
a pharmacist to dispense medication to which the pharmacist objects on
religious grounds, the state cannot compel a religious organization to
conduct one of its religious ceremonies/rites for someone who does not meet
that organization's standards.

 

In other words, I don't share the fear that the state will be compelling
clergy to perform **religious** wedding ceremonies for partnerships not
recognized as marriages by those churches or clergy-even *if* the state
continues to permit clergy to perform legally binding civil marriages in the
context of a religious ceremony.

 

On a personal note, when I was the command chaplain for the U.S. Navy base
at the south end of the Panama Canal I really enjoyed the freedom that came
from not being permitted to perform legally binding wedding ceremonies in
the Republic of Panama.  Any service member who wanted to get married in
Panama had to be married by the civil authorities.  For me, that meant that
people who came to me for a religious ceremony to solemnize their civil
wedding came to me FOR A RELIGIOUS CEREMONY because they wanted one and not
merely as a means to a change in their legal status (and the increased
monetary allowances that came with having a family).  

 

Although I may well be in a minority on this one, I don't think I'll miss
the authority/power to perform a legally binding marriage at all if it goes
away some day, because I've always found the discussions and celebration
with those who sought a religious ceremony-because they thought it was
important to their life of faith and their life in a community of faith-to
be much more meaningful and enjoyable than discussions with couples who
wanted a "church wedding" just because "that's what people do, isn't it?"  

 

                Bill Wildhack

 

Member, Florida Bar and bar of the U.S. District Court for the Middle
District of Florida
Minister of Word and Sacrament, Presbyterian Church (U.S.A.)
Commander, Chaplain Corps, U.S. Navy Reserve 

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