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

[Douglas Laycock]

 I agree that the ability to solemnize civil marriages is a red herring issue.  The important thing is control of religious ceremonies and the right to live in accord with one's own conscience.  The clergy's power to create a legal relationship is necessarily a power delegated from the state; it is not a religious function, and it is no violation of religious liberty if the delegation of legal authority is withdrawn. 

It might be clarifying, and better for everybody, if it were withdrawn, or if it were expanded to let any competent adult preside over the public ceremony and witness the legal forms that go the county clerk and provide the real evidence of mutual legal commitment in any event.  

I am emphatically not endorsing the system in some European countries, with an echo in Georgia (Atlanta, not Tbilisi), that prohibits a religious wedding in the absence of a legal wedding.  That is simply a ban on a religious ritual that should clearly be unconstitutional. 

Quoting "W. A. Wildhack III" <waw3 at wildhacklaw.com>:

> 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
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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