The Becket Fund had an interesting item about this on July 11 (sorry for the delay blogging, but I was out last week and with a poor Internet connection starting Wednesday):
There was a recent blogstorm about what was by some billed as a new legislative attempt to criminalize religious — but not civil — gay marriage in Indiana. It turned out that the purported change in law was related to a recodification of Indiana’s criminal laws rather than an intentional targeting of same-sex wedding ceremonies. And it is possible to interpret the law as only relating to civil marriage, not religious ceremonies.
But there is still a serious religious liberty problem. The Indiana law in question says that “A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by [Indiana’s law prohibiting same-sex marriage] commits a Class B misdemeanor.” The plain text of this law appears to criminally prohibit a member of the clergy from conducting a religious same-sex wedding ceremony. That’s because “solemnizes” is not defined in the Indiana statutes, and one of the word’s main dictionary meanings is conducting religious ceremonies. Indeed, many Christian denominations have long used the term “solemnization” to describe their wedding ceremonies.
I think this analysis is quite right. First, the law dates back to 1986 (Pub. Law No. 180-1986, Mar. 4, 1986, ch. 9, sec. 7); this is not an intentional attempt to go after same-sex marriage, and it applies to any prohibited marriages (same-sex, incestuous, polygamous, or involving underage parties).
Second, while the law could be seen as covering only “solemnizing” in the sense of conducting a ceremony in a way that deliberately suggests that the ceremony will have legal effect, it could also be seen as simply conducting a marriage ceremony even where everyone understands that the marriage could have no legal significance (but only religious or moral significance). And while it’s hard to know for sure what meaning the term has, there is a smattering of caselaw that I’ve seen that suggests that “solemnizing” does indeed include purely religious ceremonies.
The clearest example is State v. Holm (Utah 2006), which dealt with a polygamist marrying a third wife. It seems pretty clear that, in 2006 Utah, a polygamous marriage ceremony would be understood as having no secular validity, and as just being a religious or personal ceremony. Yet the court labeled the act as “solemnization,” for instance discussing “the type of religious solemnization engaged in by Holm and Stubbs,” even while recognizing that no-one was purporting to create a “legal marriage” through the ceremony. McPeek v. McCardle (Ind. 2008), the Indiana case cited by the Becket Fund, strikes me as more ambiguous on this; but given Holm and some older cases, I think the term “solemniz[ing]” does indeed include purely religious ceremonies.
Third, purely religious marriage ceremonies, where no-one — not one of the parties, not the government, and not anyone else — is deceived into thinking that the marriage has secular legal validity should not be punished by the state, at least when the sexual conduct that is sanctioned by the marriage is legal. (If the conduct is illegal, in particular because one of the spouses is underage, then knowingly solemnizing the marriage might be treated as aiding and abetting statutory rape; but whatever is the right answer in such situations, it doesn’t apply to many other religious marriages that are not civilly valid, such as same-sex marriages.) Holm took the contrary view as to polygamous marriage, but I think Chief Justice Durham’s partial dissent was right as to the bottom line, though I would have reached the result under the Free Speech Clause rather than the Free Exercise Clause. People should have the First Amendment right to say things to each other promising to love and help one another, even if the state chooses not to offer them the legal benefits of marriage.
I doubt that the Indiana law would indeed be used to prosecute ministers (or others) who officiate at religious same-sex weddings, or even at religious polygamous weddings that don’t involve underage parties — as opposed to ministers who conspire with a bigamist who is using a ceremony to dupe his new purported wife or defraud the government. But Becket is right to speak out against a law that, by its wording, may well authorize prosecutions for nonfraudulent purely religious ceremonies.