"James L. Ryan" <
[email protected]> wrote in message
news:[email protected]...
> Why don't we just get the government out of the marriage game altogether
and
> replace it with the notion of "civil union." Such a civil union would
allow
> two or more adult persons to declare they have chosen to live in a
communal
> state and to share benefits and responsibilities. Such a union could be anything from the
> "traditional" marriage of a man to a woman to two or
more
> state once it is properly declared, and the union can be disolved with an appropriate distribution
> of benefits and responsibilities. -- James L. Ryan -- TaliesinSoft
Sounds perfectly reasonable to me . . . I did a little checking, and it seems that a very few
states (such as California) allow "just anyone" to perform a wedding, no need for judges or
preachers; all they need to do is submit a request with $$. In Colorado, the couple themselves can
solemnize the relationship while in the County Clerk's office, no muss, no fuss (IMHO, an option
that should be allowed in every state). But in the majority of states, the laws are written so that
only Judges and preachers are allowed to seal a relationship (some states require the minister to
submit only a general document showing they are somehow connected with a religious organization,
others-like Nevada-require the minister to give a list of his church members and give details of
what he does in his church).
But it seems that some folks see no contradiction between the 1st Amendment "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof . . " and
state laws that allow only judges and preachers and exclude anyone else in performing marriage
ceremonies. Here's a few sample state laws (Arizona, Washington, and Ohio):
State of Arizona:
http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/25/00124.htm&Titl
e=25&DocType=ARS 25-124. Persons authorized to perform marriage ceremony; definition
A. The following are authorized to solemnize marriages between persons who are authorized to marry:
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created by an act of Congress
if the judges are entitled to hold office during good behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals.
B. For the purposes of this section, "licensed or ordained clergymen" includes ministers, elders or
other persons who by the customs, rules and regulations of a religious society or sect are
authorized or permitted to solemnize marriages or to officiate at marriage ceremonies.
----
Rules for Washington State:
http://www.metrokc.gov/lars/marriage/question.htm#who Who Can Perform
the Marriage Ceremony?
10. Who is authorized to perform marriages? State law prescribes who can marry. Under R.C.W.
26.04.050, active and retired justices of the supreme court, judges of the court of appeals,
judges of the superior courts, superior court commissioners, any regularly licensed or ordained
minister or any priest of any church or religious denomination, and judges (SEE LIST: 37KB DOC ,
22KB RTF ) of courts of limited jurisdiction may perform marriages.
------------------
State law for Ohio:
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h. htm&cp=PORC
section 3101.08 Who May Solemnize.
An ordained or licensed minister of any religious society or congregation within this state who is
licensed to solemnize marriages, a judge of a county court in accordance with section 1907.18 of the
Revised Code, a judge of a municipal court in accordance with section 1901.14 of the Revised Code, a
probate judge in accordance with section 2101.27 of the Revised Code, the mayor of a municipal
corporation in any county in which such municipal corporation wholly or partly lies, the
superintendent of the state school for the deaf, or any religious society in conformity with the
rules of its church, may join together as husband and wife any persons who are not prohibited by law
from being joined in marriage.
----------------
Here's a list of who is authorized to perform marriage ceremonies, state by state:
http://usmarriagelaws.com/search/united_states/officiants_requirements/index .shtml
----------------
Again, IMHO, an atheist couple is wronged when a state limits their choices to either a judge or a
preacher, as there are many more preachers than judges, and a theist couple will have a much easier
time finding a preacher to solemnize their relationship (usually their own), while non-theists are
not allowed to ask an atheist friend to do the same. Of course, as the 1st Amendment says, "Congress
shall make no law respecting an establishment of religion," there is no reason for states to
establish religious officials as a special group invested with a legal authority to change a
couple's legal status in the first place.
The solution . . . to make the system equitable to everyone and to comply with the 1st Amendment,
would be to either eliminate the preachers from their current role, and process every couple
through the same secular system. OR, each state should allow anyone (including preachers) to
solemnize relationships. Clearly, the current laws create unequitable conditions for theist and
non-theist couples.
Some objections have been made to the effect that it is not in the state's interest to let "just
anybody" perform marriages. IMHO, state licensed marriage counselors would be a far better choice
for performing marriages than preachers who often lack any training whatsoever in maritial
relationship issues, yet there is no state that prohibits clergy and mandates licensed marriage
counselors. So, it's clear that states have not made their laws with this concern in mind.
Some objections have been raised that this is a non-issue, that I should "mind my own business,"
and that there is not a problem when a state law elevates religious officials to the same level
of elected/appointed judges in matters that affect the legal status of a couple.
I disagree.
The issue of marriage is pretty hot nowadays, with the President of the US supportive of an
amendment to the Constitution restricting it to
legal rights available to non-gay couples, it is in my interest to see that the religious bigotry
that so often affects gay people is detached from the legal institutions that affect my life (and my
14th Amendment rights to "Life, Liberty, and the Pursuit of Happiness . . .).
Most state marriage laws fail a couple of tests used by the US Supreme court . . . the Lemon
test, and the Endorsement test.
The Lemon Test, from the 1971 US Supreme Court decision "Lemon vs Kurtzman," says that in order to
pass muster, government conduct (1) must have a secular purpose, (2) must have a principal or
primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive
government entanglement with religion. The laws I cited above,
(11) may have a secular purpose, in that it makes it easier for folks to get married by increasing
the number of people authorized to perform marriages.
(12) advances religion, in that the only other class of people authorized to perform marriages are
religious officials. Atheist leaders are not similarly authorized. Agnostic leaders are not,
either, or leaders of Doubters, Skeptics, Perplexed, or leaders of other non-theistic frames of
mind. Theists have a much broader choice available to them than do non-theists. So, religious
folks resort to religious groups, while the non-religious are stuck with judges, who are
usually theists (and complete strangers), unsuitable to atheists.
(13) fosters an excessive government entanglement with religion by making religious officials the
ONLY class of people, other than judges, authorized to sign government documents affecting a
couple's legal status. This action gives the clergy a "priveliged" status in society . . .
There is no reason why Preachers should be the only other people allowed to perform marriages.
In California, anyone can do it, and by gollly, the state hasn't fallen into the ocean yet! And
as I mentioned before, a state registered marriage counselor will have more expertise with
marriage, and there's no reason why they, or psychologists and psychiatrists, or even social
workers, shouldn't be authorized as well--they'd be better qualified.
There's a reason for everything, and I'm sure the reason why only preachers are allowed to perform
marriages outside of city hall, has less to do with expertise in marital relationships or what's
in the best interest of the couple, or even what the individual couple might want, and more to do
with enabling them to maintain their monopoly on religious marriage ceremonies.
So . . . most state's marriage laws fail the 2nd and 3rd prong of the the Lemon Test . . .
From
http://www.firstamendmentcenter.org/rel_liberty/establishment/topic.aspx?top
ic=public_displays --In addition to the Lemon test, the Supreme Court has also employed what is
known as the endorsement test, a test that emphasizes government neutrality toward religion. In
her concurring opinion in Lynch, Justice Sandra Day O'Connor, who is widely regarded as the
Court's current leader in establishment-clause jurisprudence, introduced this second approach to
analyzing potential establishment-clause violations when she noted two ways in which government
can encounter trouble with the establishment clause: through excessive entanglement with
religious institutions and through government endorsement or disapproval of religion.
"Endorsement sends a message to non-adherents that they are outsiders, not full members of the
political community, and an accompanying message to adherents that they are insiders, favored
members of the political community," Justice O'Connor wrote. "Disapproval sends the opposite
message." ."
. . . so . . . when a state tells a non-religious or atheist couple that they can choose between a
preacher or a judge, they essentially tell them that they really don't have the same options as
religious people do, as they can't have another atheist (or Doubter or Skeptic or whatever)
perform a ceremony for them. It is unreasonable for the state to assume that an atheist has equal
options if most of the options available are completely at odds with his opinions on religion . .
. With fewer available options, atheists are not equal, but outsiders in the process. So, these
crazy marriage laws fail the Endorsement Test as well.
There's probably other ways marriage laws fail the Lemon and Endorsement Tests, these are just the
most obvious problems that I see . . . I sure an experienced lawyer could turn up additional
problems . . .
---------
Anyway, the current marriage laws stink because (1) they involve religion too much, and (2)
religious bigotry affects the process -- the religious prohibitions against gay relationships are
allowed to affect what is to every other instution (like business institutions) in society merely a
legal relationship. And it's high damn time for a change. If I was
gonna be a while before the religious bigots even let me file an application for a marriage license.
So, I guess things ain't gonna change . . . and this long-ass post is really all for nothing, eh?
--Tock
