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"What Part of 'Make No Law' Don't They Understand?"

Classical Values blogs about a Pennsylvania court decision invalidating a marriage performed by a minister of the Universal Life Church, on the grounds that "the friend didn't qualify as a minister under state law because he had no regular congregation or place of worship"; the post condemns this decision, and also a Pennsylvania bill "that would exclude wedding officiants who are ordained 'by mail order or via the Internet or any other electronic means.'" "What part of 'make no law' don't they understand?" is the title of the blog post. (Thanks to InstaPundit for the pointer.)

I realize the title isn't supposed to be deep legal analysis, but lines like that strike me as a sort of smug textualism — hmm, maybe that would be a good name for an interpretive theory, Smug Textualism — that's pretty hard to justify. Even to the extent the argument is deliberately intended as rhetorical hyperbole, it wrongly trades on an assertion of textual clarity, and on the claim that the other side is betraying the clear and unambiguous meaning of the constitutional text. If the text is in fact not at all clear (and I'll explain below why it's not), the argument is a cheap shot at best and misleading at worst. And the rhetorical device is distressingly common, which is why I want to take the time to address this instance of it.

First, note that "make no law" comes from "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Which part of that didn't the post's author understand — Congress? Congress isn't doing anything here.

Of course, perhaps the First Amendment applies to state legislatures and judges via the Fourteenth Amendment, either through the provision that says "nor shall any State deprive any person of life, liberty, or property, without due process of law" (that's what the Court has held) or the provision that says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (that's what some scholars argue). So which part of that don't you understand — "deprive any person of liberty ... without due process of law," or "abridge the privileges or immunities of citizens of the United States"? The answer is probably both, and rightly so: Both are hard to figure out, especially as they apply to the Religion Clause, at least part of which doesn't seem specifically focused on personal liberty or citizens' privileges or immunities. In any case, there's surely no shame in differences in how to understand the text of either provision.

But let's accept the view that "make no law" applies to states as well as to the federal government, and to judiciaries as well as legislatures. The Court has certainly done so, though note that implicitly relying on precedent rather than text gets us beyond the "What Part of [the clear constitutional text] Don't They Understand?"

There's still the question of exactly how recognizing only certain marriages constitutes "mak[ing a] law respecting an establishment of religion, or prohibiting the free exercise thereof." No-one's religious practice is being prohibited, not even the Universal Life Church's. Nor is such a legal rule clearly a "law respecting an establishment of religion," since no religion is being established as a state religion — not Anglicanism, not Protestanism, not Christianity, not even theism generally.

All this having been said, I actually agree that giving legal preferences to ministers who have a congregation over ministers who don't, or even giving legal preferences to ministers who were ordained in person over those who were ordained by correspondence, is generally a bad idea, and may well be unconstitutional, likely as a violation of the Establishment Clause under Larson v. Valente. One can make sensible precedential arguments for such a judgment of unconstitutionality. One can make sensible prudential arguments. One might even be able to make sensible original meaning or textual arguments, though I'm skeptical about that based on my limited knowledge of the original meaning of the Establishment Clause, and on my sense of the text. (Perhaps the strongest textual argument would be an Equal Protection Clause argument, though even there I think you can't make a decision based on the text alone.)

But one can't make the smug textualist argument that one's critics just don't understand the clear meaning of the constitutional text. There are a few constitutional law matters where a simple appeal to the text is largely dispositive — but only a few (at least among the matters that are likely to be contested), and this surely isn't one of them. And while there are many more for which careful analysis of the text, usually coupled with original meaning, precedent, structure, or other things, can be helpful or even dispositive, the smug "what part of '[textual provision]' don't they understand?" isn't conducive to such careful analysis.

RainerK:
Ah, don't you like the legal minds, especially those that study the law. Analyse and interpret language, not an easy task giving that language reflects the life of the people using it, seek for precedences and interpret their language, seek to persuade.
All very important, especially when applied to contracts, regulations and humans' never-ending quest for more power and influence.
Why not agree on one basic principle? If the individual's liberty is furthered go for it. With some constraints of course, subject to analysis, interpretation and precedent ....
In this case it should be easy, no? Get government's tentacles out of marriage, completely, unambiguously, now.

(The above to be taken a bit tongue-in-cheek. Except the last sentence, of course.)
11.13.2007 11:02am
Zacharias (mail):
I fail to grasp EV's point that "No-one's religious practice is being prohibited, not even the Universal Life Church's." Holy Matrimony is a sacrament to some, just like Baptism and Mass, and prohibiting a sacrament seems like pretty serious messing with someone's religious practice.

The business opportunity here is for Universal Life ministers to begin personally inducting others into the ministry, though the problem here is that God will probably have to appear personally after such a long absence just to get the process started in Pennsylvania.
11.13.2007 11:04am
Oren:
Zach, they haven't prevented the ULC from conducting the sacrament, they simply the refuse to acknowledge it as creating a binding civil marriage.

Rainer's solution would, of course, be ideal but is unfortunately impossible. Government has gotten itself enmeshed in marriage and it can't get out.
11.13.2007 11:09am
RainerK:
Precedences or precedents? Hm, should have looked it up. No better excuse than English as a second language.
Never seems to be a problem for the VC contributors. My hat is off to you. Is there a secret?
11.13.2007 11:09am
alkali (mail):
All this having been said, I actually agree that giving legal preferences to ministers who have a congregation over ministers who don't, or even giving legal preferences to ministers who were ordained in person over those who were ordained by correspondence, is generally a bad idea, and may well be unconstitutional ...

Even there I think there is room for considerable disagreement.

For those who are unaware, the Universal Life Church is an organization that advertises in the back of Rolling Stone that they will "ordain" you as a minister if you send them $20 or so. I think the commonwealth would be within its rights to treat that kind of thing as a sham, rather than as an actual religious organization. (There are a number of legitimate schools that offer correspondence and distance study in theology, and someone who became an ordained minister that way would seem to have a valid grievance.)

All of which is to support EV's broader point that Smug Textualism doesn't solve the problem.
11.13.2007 11:25am
AK (mail):
The government determines who is and who isn't a religious minister when determining whether to apply the priest/penitent privilege. A conversation in which the accused admits to committing a crime does not become privileged because both parties to the conversation assert that the accused is a member of a religion in which the other party is a clergyman.

I don't know exactly what the criteria are for determining that someone is a clergyman for purposes of evidentiary privilege, but Pennsylvania's criteria don't strike me as being obviously unreasonable.
11.13.2007 11:33am
Tony Tutins (mail):
By setting up these criteria for authorizing marriage officiants, Pennsylvania is not treating clergy of all faiths equally. I wonder if they recognize clergy from the Church of Scientology, whose status as a religion is routinely denied by European countries.

The boundaries of what the ACLU calls the separation of church and state mystify many laymen: churches don't pay local property tax, but they are subject to local zoning ordinances. Nuns pay income tax but not FICA. Etc.
11.13.2007 11:43am
JB:
Why do you need a minister to get a civil marriage?

The state should not be concerned with whether people applying to be married in sight of the tax code have been married appropriately in sight of God. I don't understand what the point of this case is at all.
11.13.2007 11:44am
Laura S.:
Eugene, I agree with you, in each instance except when you say:

No-one's religious practice is being prohibited

Replace 'marriage' with 'sacrament' and reconsider.
11.13.2007 11:45am
AK (mail):
Laura S:

The state is not prohibiting anyone from conducting a marriage according to the rites of the Universal Life Church. The state is merely refusing to recognize such marriages as having legal consequences.
11.13.2007 11:48am
Zacharias (mail):
I wonder whether Pennsylvania recognizes marriages performed in a Quaker ceremony, which can never have an ordained minister. Leave it to Pennsylvania to get both Jesus and William Penn spinning in their graves.
11.13.2007 11:49am
Zacharias (mail):
Wikipedia says this:

A governmental marriage license is not usually part of the [Quaker] ceremony, and can be signed at a separate time if desired. In many areas, the license must be signed by an "officiant," but in the state of Pennsylvania, self-uniting marriage licenses are available which require only the signatures of the bride and groom and witnesses. These licenses are available to any couple who wishes to be married without an officiant, regardless of religion.
11.13.2007 11:57am
John (mail):
Smug textualism has a lot to recommend it. To think that "speech" might have something to do with vocal cords, that "Congress" might refer to those guys in D.C., and not to "states," that "no law" might not mean "no state action"--well, the list is endless, I suppose.

A country where problems are ultimately resolved (and, fairly, created) by good old democracy. Oh, the horror!
11.13.2007 12:06pm
Martin Grant (mail):

For those who are unaware, the Universal Life Church is an organization that advertises in the back of Rolling Stone that they will "ordain" you as a minister if you send them $20 or so. I think the commonwealth would be within its rights to treat that kind of thing as a sham, rather than as an actual religious organization.


Based on what criteria? That it's in Rolling Stone? Or that there is a fee? Which one makes the religion a sham?
11.13.2007 12:13pm
kdonovan:
I've read that in the colonial era denying state recognition to marriages performed by Presbyterian ministers from Scots-Irish immigrants was a way that some colonies tried enforce the establishment of the Anglican church. If this is true then Pennsylvania's practice seems quite similar, and thus suspect if the Constitution is to be read as prohibiting states from establishing churches.

Kevin
11.13.2007 12:14pm
r78:
Regardless of whether the headline is or is not smug, the central point is unassailable: Here the state of Pennsyslvanis is determining who is and who is not a minister of a certain church.

To quibble about whether or not the restriction is "reasonable" completely misses the point.

It would be completely reasonable, in my opinion, to require "ministers" to have completed an advanced degree in theology. How many current ministers with "congregations" would qualify under that standard? I don't know. But such a requirement just as intrusive and improper as requiring that the "minister" have a certain number of congregants.

Suppose a bride wishes to be married by her grandfather who is a minister. He used to have a flock but he retired a decade ago because of poor health. Under PA's law, he does not have a flock so he can't perform the ceremony.

Anyone who imagines that there is a constitutional defense of such a law has much to learn.
11.13.2007 12:14pm
Daniel J. Wojcik (mail) (www):
If I recall correctly when I was ordained by the ULC, ministers are supposed to check with their States to see what requirements there are for marriages. If that wasn't done, then naughty naughty naughty.

Rev. Ignoratio Elenchi
11.13.2007 12:17pm
loki13 (mail):
John,

Fine. No federal perjury laws (for federal cases). And Congress may regulate any writing, picture, or artwork that travels in interstate commerce.

Textural enough for ya?
11.13.2007 12:17pm
A. Zarkov (mail):
"… they simply the refuse to acknowledge it as creating a binding civil marriage."

But the government recognizes the ceremonies of some religions as creating a binding civil marriage. This puts the government in the religion certification business favoring one religion over another. Of course the federal government does this with the tax code. For example the IRS granted the so-called Church of Scientology tax benefits denied to other religions. COS members can deduct the cost of courses provided to them. Other religions thought that they could do likewise, but the IRS said no. See Sklar v. Commissioner of Internal Revenue No. 00-70753. Amazingly the Ninth Circuit upheld the IRS.
11.13.2007 12:20pm
Ken Arromdee:
It would be completely reasonable, in my opinion, to require "ministers" to have completed an advanced degree in theology. How many current ministers with "congregations" would qualify under that standard?

I think the idea isn't really reasonableness, but sincerity.

Having a congregation and a place of worship is just a proxy for sincerity. And there's a big difference between "your qualifications aren't enough to be a minister", and "you're not sincere about being a minister".
11.13.2007 12:21pm
AK (mail):
r78:

Here the state of Pennsyslvanis is determining who is and who is not a minister of a certain church.

To quibble about whether or not the restriction is "reasonable" completely misses the point.


What if I refuse to testify about what a friend told me on the grounds that I'm a Catholic priest, and he was confessing sins to me? Can the state determine that I'm not a Catholic priest?

And Congress may regulate any writing, picture, or artwork that travels in interstate commerce.

Writings would be covered by "press."
11.13.2007 12:24pm
Martin Grant (mail):
11.13.2007 12:26pm
Hoosier:
AK--Your point about priest/penitent privilege is exactly right. States DO make decisions about WHO is "clergy," and what counts as a confession. If they did not, I'd encourage all my friends and familty to become ULC ministers. Then we could fight any attempt to get us to testify against our will, should the need ever arise. Might not work. But would make prosecution a real pain in the butt.

Realted Question--
For any lawyer who know about this stuff: The Seal of the Confessional is complete in the RC Church. Priests are not even allowed to reveal, say, a penitent's continuing abuse of a child. The priest can, and will, refuse absolution in such cases. But he may not go to the police. This goes beyond even psychiatrist/patient privilege.

So, I'm curious: Is this refusal to reveal continuing or potential crimes legally protected? Is it protected in the case of other clergy?
11.13.2007 12:27pm
Fub:
alkali wrote at 11.13.2007 11:25am:
For those who are unaware, the Universal Life Church is an organization that advertises in the back of Rolling Stone that they will "ordain" you as a minister if you send them $20 or so. I think the commonwealth would be within its rights to treat that kind of thing as a sham, rather than as an actual religious organization. (There are a number of legitimate schools that offer correspondence and distance study in theology, and someone who became an ordained minister that way would seem to have a valid grievance.)
The Universal Life Church was founded in 1959. Jerry Falwell's Thomas Road Baptist Church was founded in 1956. At least with respect to length of their histories I'd say they're comparable as religious organizations.

The WikiPedia article above cites Universal Life Church vs. State of Utah, US Dist. Court for the District of Utah (2002), in which the issues seem to be very close to the issues in this Pennsylvania case. Utah lost.
11.13.2007 12:37pm
AK (mail):
Hoosier:

I started out in criminal law, and the clergy privilege never came up, so I have no idea.

I'm trying to think of a scenario in which the state would try to compel the testimony of a confessor and would know that a portion of the proffered testimony would not count as confessing past sins. I would think that a priest would completly refuse to answer any questions about what went on in the confessional.
11.13.2007 12:39pm
great unknown (mail):
There is a great statement in the article that the non-establishment clause may not bind the Judiciary. Wow!
Can judges now blatantly resolve child-custody cases on the basis of the religion or non-religion of the contesting parents?
Oh, wait a minute. They're already doing that.
11.13.2007 12:42pm
Hoosier:
AK--I'm thinking more of a situation in which, say, John Doe is arrested for child abuse, and tells the police that he revealed the abuse some time ago to Dr. Jones (his therapist) and Fr. Francis. Neither of them went to the authorities.

Dr. Jones has violated the law, if I understand things correctly. But is Fr. Francis immune from prosecution? From civil suits?

What if it's Mr. Stein telling police that he confessed abuse to Rabbi Kapplan?
11.13.2007 12:49pm
Bob from Ohio (mail):

Anyone who imagines that there is a constitutional defense of such a law has much to learn.


Is that a smug statement?

Does Judge Kimball of the US District Court have "much to learn"? Read the Utah case cited above, he managed to come up with "constiutional defenses" of a similar law.
11.13.2007 12:53pm
Bob from Ohio (mail):
One correction to my above comment, the Utah law was struck down because of the distinction between mail and internet. Absent that provision, it would have been upheld.
11.13.2007 1:01pm
Kenvee:
Wouldn't it be easier if, rather than saying any ordained minister can perform a marriage, the states simply say that anyone who wants to perform a civilly recognized marriage has to, say, pay a nominal fee ($10 or so) and sign a registry of authorized officiants? That way the states aren't passing judgment on who is or isn't a minister and all the people who want to be able to perform a friend's marriage can do so without (IMO) cheapening religion by getting ordained in two minutes on the internet.

That said, I don't think it's unreasonable for the government to make some sort of determination of what is or isn't a religion for the purpose conferring benefits on them. Want the benefit of tax-free status, priest/penitent privilege, or performing marriage ceremonies? The government has to be able to have some sort of criteria to determine who qualifies. Just want to go and worship the Flying Spaghetti Monster as you please? Government has no place deciding if you are or aren't a religion. They're two different things, IMO.
11.13.2007 1:09pm
Aultimer:

Suppose a bride wishes to be married by her grandfather who is a minister. He used to have a flock but he retired a decade ago because of poor health. Under PA's law, he does not have a flock so he can't perform the ceremony.

Correct. The couple (and Rev. Grandfather, as witness) can sign the self-uniting paperwork though. There's no requirement or prohibition about what goes on at the ceremony, and you don't have to be Quaker.

I think Pennsylvania does a nice job of staying out of the 1stA - a clergyperson is whomever says they are. A person who can sign a Pennsy marriage certificate is a person who regularly and notably takes a leadership role in the community - a minister with a congregation, a judge, mayor or county clerk. If you don't like those choices, you have to do the paperwork at the courthouse.
11.13.2007 1:37pm
AK (mail):
John Doe is arrested for child abuse, and tells the police that he revealed the abuse some time ago to Dr. Jones (his therapist) and Fr. Francis. Neither of them went to the authorities.

Dr. Jones has violated the law, if I understand things correctly. But is Fr. Francis immune from prosecution? From civil suits?


The doctor would subject to professional discipline from the state licensing body. Obviously there's no equivalent for priests.

In the states where I'm admitted, I'm not aware of any criminal penalties for anyone who learns of a plan to commit a crime and takes no steps to report it or prevent it. As long as you don't assist in the commission of the crime, you're off the hook.

As far as civil penalties go, I don't know, but I'm going to fall back on the general tort law rule that there's no duty of rescue. A person who learns of an intent to abuse a child is no more obligated to prevent harm to that child than someone who sees the child being abused and does nothing.
11.13.2007 1:37pm
AK (mail):
What if it's Mr. Stein telling police that he confessed abuse to Rabbi Kapplan?

Although the privilege developed as a response to Catholic confession, today the privilege applies to clergy in religious groups that do not have individual sacramental confession.

The rationale is that discussion of moral matters with a clergyman is an important part of most religious experiences, regardless of the group's procedural policies on the forgiveness of sins.
11.13.2007 1:45pm
Duffy Pratt (mail):
The Pennsylvania Constitution provides:

"no preference shall ever be given by law to any religious establishments or modes of worship."

I guess you could argue that there is no religious establishment or mode of worship unless there is a "regular congregation and place of worship." By that standard of course, most if not all of the early Christians did not belong to a religious establishment.

By the way, the problem may not be in the exclusion of these ministers, but in the state authorizing any ministers at all to perform a civil function. Why ministers and not others. It would be much simpler to have a licensing system by which anyone could become authorized to perform weddings, including ministers. It would work in much the same way that being a notary now works.
11.13.2007 1:54pm
AK (mail):
That said, I don't think it's unreasonable for the government to make some sort of determination of what is or isn't a religion for the purpose conferring benefits on them. Want the benefit of tax-free status, priest/penitent privilege, or performing marriage ceremonies?

As you've probably noticed, I think that the state should have the power to determine what is a religion and who is a clergyman for tax, evidentiary privilege, and other purposes (such as exempting religious ceremonies from age restrictions on alcohol consumption).

However, I'm not convinced that the restriction on performing marriages has a rational basis. I really can't come up with a reason for saying that Person X can't bind two people in legal marriage once those people have been licensed to wed by the state.
11.13.2007 1:57pm
Thomas_Holsinger:
ULC marriages are valid in California. I know people who were married with ULC ministers presiding - one was a client. And his wife (for about a week) told me she was shocked when the ULC minister had her sign the marriage certificate so he could file it with the county clerk. She thought the ceremony was a joke, but she was the only one who did. Everyone else was serious. She then paid another attorney to have the marriage annulled.

I pulled a classic sophomoric prank (being then a college sophomore at UC Santa Cruz) with the Universal Life Church. I wrote to the Reverend Kirby J. Hensley in Modesto, California, gave him a $10 check for my ordination certificate, and included the student mailing list for all the students at Adlai Stevenson College of UC Santa Cruz. This was towards the end of the winter 1969 Quarter. And I pointed out that the first day of the Spring Quarter was April 1, 1969.

Hensley agreed that this would make a great April Fools' joke and sent me the ordination papers for every student at Stevenson, including my own. I and a friend spent half the night on Sunday, March 31, 1969, stuffing mailboxes in the mailroom.

So, when almost all students at Stevenson picked up their mail on Monday, April 1, 1969, they discovered that they had all been ordained as ministers in the Universal Life Church.
11.13.2007 2:35pm
Justin Levine:
AK manages to touch on the real problem. If courts are going to interpret what is or is not an 'establishment of religion', then society must be prepared to allow the courts to define what is or is not a true 'religion'. If clergy are to be granted rights and privleges under the civil law, then civil courts must be granted the power to define who the clergy are.

Personally, I find it disturbing to allow a branch of government to define what religion is (even a branch that isn't directly political such as the courts). However, that is the way our looney system has evolved with regards to the Establishment Clause, so I think it is ridiculous for so many legal scholars to turn a blind eye to the real problem and issue here.
11.13.2007 2:39pm
Waldensian (mail):

For those who are unaware, the Universal Life Church is an organization that advertises in the back of Rolling Stone that they will "ordain" you as a minister if you send them $20 or so. I think the commonwealth would be within its rights to treat that kind of thing as a sham, rather than as an actual religious organization.

What, exactly, are the identifiable distinctions between a "sham" and an "actual religious organization"?
11.13.2007 2:43pm
Jon Rowe (mail) (www):
Levine:

Great comment: This is exactly what Madison was concerned about which is why he proposed the "no cognizance," standard.
11.13.2007 2:45pm
MDJD2B (mail):

Why do you need a minister to get a civil marriage?


You don't, but a minister may officiate at a marriage, along with various civil officials, such as judges and mayors. The point (or a point) is so people don't have to go to two different places to get married-- the church and the county clerk, for instance.

And having a congregation or such things presumably are indicia of the ability and willingness of the officiant to make some sort of check that the marriage is legal-- the both of the couple are old enough, they aren't too closely related to fall under incest laws, etc.
11.13.2007 2:50pm
Gavin (mail):
Not strictly relevant, but I have been on yachts with plaques that clearly said:

All marriages performed by the captain of this vessel are valid only for duration of voyage.

Of which I cannot speak to the legality.
11.13.2007 3:13pm
Joel Rosenberg (mail) (www):
Levine: yup.

Waldensian: on cynical days, I'd say that the difference between a sham religious organization and a real one is the amount of harm that they can do; the real ones, historically, have done a whole lot more. By that standard, the ULC is definitely a sham -- I don't think there's any evidence that the ULC or somebody acting in its name has ever so much as temporarily inconvenienced anybody.

alkali: I'm a ULC Minister (as is my wife, and as was my late cat, the Reverend Squish). It cost me nothing to sign up, and if you'd like to, it would it cost you nothing -- see http://www.themonastery.org/?destination=ordination .

Strange kind of scam that gives you the benefit without charging, isn't it? Think of it as Open Source Religion, and you'll pretty much have it. And what's wrong with that?

If you want extra merch or certain titles, sure, you've got to pay.

Far as I can tell, Kirby Hensley, the church's founder, was both serious and not -- he really believed in all the good stuff, but had a sense of humor about making religious certification easy and open for, well, everybody.

I haven't done anything with my certification (I signed up a couple of decades ago), but some friends have gone to the trouble to register with the state (Minnesota being "the" state where I am), so that marriages that they perform have the same legal standing as others. (I haven't; I just haven't had the occasion to want to marry anybody to anybody else, and the tenets of my own branch of the ULC -- the Congregation of the Appropriate Revolver -- forbid me, at the moment, from trying to take any advantage of my ordination, other than by mild criticism and mockery of those who think that the semiauto makes a generally better personal defense weapon.)

All in all, I think the ULC church is a good thing, by expanding religious choices among Americans to anything that doesn't interfere with the rights of others, and that for US states or the Feds to pick winners and losers among religious organizations is a bad idea, whether or not it's legal.
11.13.2007 3:19pm
Vivictius (mail):

What, exactly, are the identifiable distinctions between a "sham" and an "actual religious organization"?


Obviously a "sham" is any religious organization I dont follow.
11.13.2007 3:28pm
Zacharias (mail):
Believe it or not, there are such things as atheist chaplains, and why not? Religion does not need to involve a god figure, of course, and many don't. But since no atheist chaplain would be expected to attend seminary or be "ordained," doesn't it make sense that a degree in science would be what qualifies a person to be certified as an "atheist chaplain"?

And of course, a person's religion could be the Church of Solitude, for which it would be silly to require him to have a congregation or meeting place, except for a meeting place for one!

The gummint should get the hell out of both marriage and religion, since there is really no way to determine what is a "sham" religion or a "sham" marriage.
11.13.2007 3:30pm
Kent G. Budge (mail) (www):
I think what distinguishes ULC from more conventional churches is the suspicion that it is religious satire. That suspicion may be incorrect, but it clearly underlies this case. Whether it should is another question.

I guess I should never move to Pennsylvania, where my marriage may not be recognized. After all, I was married in a Mormon temple by an unschooled elder who had no regular congregation.

This and the Quaker example strongly suggest the proponents of the narrow legal definition of minister simply haven't thought it through. Reminds me of my new motto for Congress: "Legislation unencumbered by the thought process."
11.13.2007 3:35pm
PersonFromPorlock:
OK, to do my usual wild man act, what is there in the Religion Clause, even as generalized by the Fourteenth Amendment, that prohibits a state from establishing a church? Congress is prohibited from establishing a national church and from interfering with state established churches ("the free exercise thereof" has to refer back to "an establishment of religion" for want of anything else) but that's all the Religion Clause does.
11.13.2007 3:53pm
pete (mail) (www):
The pastor of our last church resigned a few months before my wife and I were going to get married. One of my friends at the church was a former youth minister and we asked him to step in because he was the only other ordained person in town that we knew well. At the time he was the manager of a Jack in the Box and had no current flock, but he was ordained. My future mother in law was not to happy with this until we explained that he had performed a couple of marraige ceremonies before.

One of the elders at our church told me that all of the church elders were legally ordained and could perform marraige ceremonies and that in Texas you just had to have someone ordained present and that anyone could perform the actual ceremony.

Who counts an ordained minister has changed recently in many churches since many "bible" and "non-denominational" churches do not have an established ordination procedure and many of the pastors do not attend seminary. Also many of these churches believe that sacraments can be performed by any church member. There is a large belief there in the "priesthood of all believers" see 1 Peter 2:9.
11.13.2007 4:02pm
Fub:
Kent G. Budge wrote at 11.13.2007 3:35pm:
I think what distinguishes ULC from more conventional churches is the suspicion that it is religious satire. That suspicion may be incorrect, but it clearly underlies this case. Whether it should is another question.
If a church which teaches "Do only what is right" is a satire, then what is a church which teaches a list of specific prohibitions passed down by word of mouth among wandering semiliterate tribesmen for thousands of years?
11.13.2007 4:36pm
John (mail):
loki13,

Well, to some extent, yes. Unless you want to amend the Constitution to prevent it. Of course, that would involve democracy again, so, once again, oh, the horror!
11.13.2007 4:48pm
Brice Timmons (mail) (www):
This thread seems to be getting bogged down in a few specific issues. Firstly, as a practical matter (and we all know that doesn't matter much in court) it seems that states generally should consider self-binding civil arrangements for all "marriages" or whatever you want to call them. The sheer volume of litigation and enacted law relating to "marriage" should indicate that some sort of uniform code on familial and civil relationships might be in order. Somewhere above it was suggested that the government was too entangled in "marriage" to get itself out. The government is too entangled in arms production to get itself out. Dismantling the FCC might be difficult, and the Social Security mess would have high transition costs. Changing the procedural requirements to file jointly? I don't think so. The bundle of rights that come along with "marriage" are not so complex that they cannot be addressed. The property aspect has already been addressed in many states for other reasons. The evidentiary privilege isn't complicated. Taxes aren't hard. Where is this great barrier to solving issues related to marriages by the ULC, gay Episcopalians, and 1st cousins? It's in political rhetoric, that's where. This is a legislative problem which some reform-minded (or heretical, depending on your point of view) judges and activists have forced to the front of public debate. If we could tackle this with the efficacy and seriousness which we tackle state telecom franchise laws we'd be fine.
11.13.2007 4:51pm
Rock Chocklett:
The Universal Life Church was founded in 1959. Jerry Falwell's Thomas Road Baptist Church was founded in 1956. At least with respect to length of their histories I'd say they're comparable as religious organizations.

Not exactly. The ULC as a religion or denomination began in 1959. Although TRBC as a local congregation first met in 1956, Baptists have been around for centuries.
11.13.2007 4:52pm
Aultimer:

But since no atheist chaplain would be expected to attend seminary or be "ordained," [...]

I've heard that there are some schools in New Haven and Cambridge that run some kind of "divinity" schools that issue advanced degrees without ordaning anyone. Whatever they are, they've got to turn out less-able preachers than those with lambskin from Domino's Church U. or Pat Robertson U.
11.13.2007 4:56pm
Thomas_Holsinger:
Zacharias,

Atheist chaplains are more commonly called Unitarians.
11.13.2007 4:57pm
Waldensian (mail):

Atheist chaplains are more commonly called Unitarians.

Heh. How do you get a Unitarian out of your neighborhood? Burn a big question mark in his front yard.

Joel, I agree with so much in your post that it's possible we were identical twins separated at birth. That should frighten you. Let me just note that I carry a 1957 Colt Detective Special. Good enough for Joe Friday....

Vivictius, I think you have it exactly right.

Meanwhile, how do I get to be an atheist chaplain?!? Does the military have atheist chaplains? They would be a HUGE hit in Iraq among the locals.
11.13.2007 5:12pm
Bill Poser (mail) (www):
Zacharias and Thomas Holsinger,

Buddhists are atheists, but have clergy (priests, monks, and nuns) who receive training similar to that of other religions.
11.13.2007 5:24pm
Hoosier:
What do you get when you cross a Unitarian with a Jehovah's Witness?

Someone who knocks on your door for no discernable reason.


AK--Thanks. That answers my questions.
11.13.2007 5:27pm
Goobermunch:
Joel Rosenberg--

And yea, I ask of you, what caliber do you follow?

For if you follow the path of the .38, you are a heretic and an infidel.

But if you follow the path of the righteous .45, then you and yours are well and truly blessed.

--G
11.13.2007 5:41pm
Bill Poser (mail) (www):

But if you follow the path of the righteous .45, then you and yours are well and truly blessed.


Urban sissies. Real men use a .30-.30 with 170 grain load or heavier.
11.13.2007 5:45pm
Goobermunch:
Bill Poser--

Haven't seen many revolvers chambered in .30-.30.

'Course my pappy always said the only reason to have a pistol is to fight your way to your shotgun. :)

Personally, I'm a fan of the .308 for bringing the hurt from a distance.

But that's a conversation for another thread.

Sorry for the threadjack.

--G
11.13.2007 5:54pm
Fub:
Bill Poser wrote at 11.13.2007 5:24pm:
Buddhists are atheists, but have clergy (priests, monks, and nuns) who receive training similar to that of other religions.
But only in the sense that neither belief in a supreme being, nor nonbelief, is required. No Buddhist sect I've heard of has required either belief or nonbelief. The Gotama allegedly taught that the question was not fruitful or useful, so Buddhism is orthogonal to the theism-atheism axis.
11.13.2007 6:34pm
David Chesler (mail) (www):
Professor, you are guilty of what you accuse Classical Values of, taking too literally the colloquialism "What part of _____ don't they understand?"

There certainly is (as you note) a body of rulings and study that states oughtn't get too entangled in religions.

(I'll add my 2 cents that the less entangled the better. I'm not happy that the General Laws of Massachusetts attempt to map the particular clergy of different denominations, as regards marriages and relgious corporations. The bit about marriage ends with a catchall

it may be solemnized according to the usage of any other church or religious organization which shall have complied with the provisions of the second paragraph of this section.

Churches and other religious organizations shall file in the office of the state secretary information relating to persons recognized or licensed as aforesaid, and relating to usages of such organizations, in such form and at such times as the secretary may require.


In particular Judaism doesn't require either a rabbi or a cantor for a good religious marriage, but since Judaism is already listed, they are not any other church or religious organization. They don't say anything about ULC there.
11.13.2007 6:48pm
alkali (mail):
However, I'm not convinced that the restriction on performing marriages has a rational basis. I really can't come up with a reason for saying that Person X can't bind two people in legal marriage once those people have been licensed to wed by the state.

I'm guessing that the underlying rationale is that there should be a person present at the wedding who would be credible and locatable who could testify to the validity of the marriage (the bride and groom were not drugged, under duress, etc.). A genuine member of the clergy would satisfy that criterion. Someone who sent away for an ordination certificate to a P.O. Box listed in a classified ad might not.

To be clear, I don't disagree that there are lots of sensible ways in which archaic and semi-archaic laws relating to this issue could be reformed. (Indeed, it is now the case that in many states, anyone of legal age can marry two people if they provide certain information to the secretary of state or some other authority in advance of the wedding date.) The question addressed by the post was whether Pennslyvania's law was constitutional, not whether it was the best of all possible legal regimes.

To clarify another point, I think it is fair to say that the ULC is not a genuine religious group, but I don't mean to suggest that there's anything nefarious about it. It may be a sham but it's not a scam, certainly so far as I know.
11.13.2007 7:17pm
Dexceus (mail):
Many, many pagans use the ULC as 'cover' to be ordained and be able to do for the pagan community what ordained ministers do for other communities. They generally do not have a 'regular congregation or place of worship'. Yet it doesn't make it less of valid religion. And the ULC is used because there isn't anything close to a centeralized authority to ordain anyone.
11.13.2007 8:02pm
Owen Hutchins (mail):
Pennsylvania doesn't even require that a marriage be officiated at all. This one is ludicrous. The government should not and must not get into the business of declaring what is and is not a "real" religion.
11.13.2007 8:40pm
Brice Timmons (mail) (www):
Buddhists are atheists, but have clergy (priests, monks, and nuns) who receive training similar to that of other religions.


As a Buddhist I would like to point out that this is a patently false statement. As another poster pointed out The Buddha merely considered attempts to concern oneself with a deity to be fruitless with regard to enlightenment. I am definitely not an atheist, nor do I fit into any archetypal theistic structure. The majority of the Japanese people are Shinto/Zen practitioners who revere the traditional gods while still being Zen Buddhists. I suppose that it could be the case that I and my fellows are "bad Buddhists" or somesuch, but that isn't my first inclination.

And I'll take a reliable wheelgun over an automatic any day as a sidearm, whether it be a .38 or a .357 mag. (Not particularly interested in anything heavier as it slows down the ROF too much.) For a long-gun I'll take a Remington M700 with decent optics, reliable, accurate, and ammo's easy to come by.
11.13.2007 10:14pm
Dave N (mail):
Given Pennsylvania's law (obviously written with Quakers in mind) that a minister is not required at all, the decision is silly--as was the lawsuit challenging whether a ULC ordination is proper or not.

My son and future daughter-in-law wanted me to conduct their wedding, in part because they thought my governmental position should allow me to. When I told them I legally could not and they still wanted me to officiate, my son, his bride-to-be, her father, and I all trooped down to the Justice of the Peace and he performed the legal ceremony--then I conducted one "for show" in front of the assembled guests. Problem solved.
11.13.2007 10:35pm
Jon Rowe (mail) (www):
Heh. How do you get a Unitarian out of your neighborhood? Burn a big question mark in his front yard.

Stop makin' fun of Unitarians. They actually have a rich history that goes back to America's Founding era. Jefferson, Franklin and John Adams clearly understood themselves to be "unitarian" by name. And Washington and Madison were probably theological unitarians as well. Only Adams was formally associated with a Unitarian Church.

Back then, unitarians were more religious; they were devout theists who believed in an active personal God. Some unitarians could be quite biblical, believing the entire Bible the Word of God -- but Jesus was not God, rather a great human moral teacher (Socinian) or perhaps a divine being created by but subordinate to the Father (Arian). Biblical Unitarians included Chief Justice John Marshall, Joseph Story and Jared Sparks, and from the earlier generation, Milton and Newton. Other unitarians -- like Jefferson, Adams, and Franklin and perhaps Madison and Washington -- were rationalists who believed God primarily revealed Himself through Nature and only partially inspired the Bible, leaving man's reason the ultimate arbiter of Truth. In this regard, they followed Joseph Priestly, a British Whig and the co-discoverer of Oxygen.

John Locke was also likely a unitarian of the Arian variety. But, scholars disagree on just how "biblical" his beliefs were.

These "unitarians" understood themselves to be true Christians. But given they rejected the Nicene Creed, i.e., the hallmark of Christian orthodoxy, whether they can truly be called Christians is debatable. At best, they were Christian heretics. And, as I've discovered, this Christian heresy was key to the political theology of American Founding thought.
11.13.2007 10:40pm
New Pseudonym (mail):
So PA (et al) recognize marriages "performed" by Catholic priests. I was under the impression that the ordinary ministers of the Sacrament of Matrimony in the Catholic Church are the bride and groom. The priest is merely the Church's official witness to the performance of the sacrament, although his presence is required for the sacrament to be licit.

Sounds similar to PA's statute permitting marriages with no one officiating.

As is not uncommon in Europe, I was married civilly in the Standesamt Berlin-Zehlendorf (as required by the FRG), and three days later in a religious ceremony. Most western European nations have no link between civil and religious marriage.
11.13.2007 10:55pm
Brice Timmons (mail) (www):
But given they rejected the Nicene Creed, i.e., the hallmark of Christian orthodoxy, whether they can truly be called Christians is debatable.

I don't think it's that debatable. The Council of Nicaea didn't happen until the 4th century. That's four centuries of pre-Nicene Christians, forming numerous heterogeneous groups with different philosophies and beliefs. The Arian "heresy" was one of those, and Arians participated in the 1st Council of Nicaea, even if they lost. Everybody's a heretic to somebody. I love the "burning question mark" joke, though.
11.13.2007 11:19pm
Jon Rowe (mail) (www):
Brice. Good point. But from the orthodox Trinitarian perspective -- which is how evangelicals and Catholics understand their faith -- that is the only valid form of Christianity. Every thing else -- Mormonism, Jehovah's Witnessism -- whatever it might call itself, is not "Christian."
11.13.2007 11:41pm
Tony Tutins (mail):

The Arian "heresy" was one of those, and Arians participated in the 1st Council of Nicaea, even if they lost. Everybody's a heretic to somebody

But being a heretic was not a laughing matter after Nicaea, when it became a secular crime, and a capital crime in 382. Although, heretics were not actually burned till after the fall of Rome, in the 11th century.
11.13.2007 11:48pm
Eric Scheie (mail) (www):
The title of my post was not meant to be smug textualism. While I tend to be a literalist, I understand that interpretations can vary. (The above comments reflect that.)

The post title (an admittedly overwrought slogan I hear a lot) was meant to be eye-catching, to draw readers in.

Smug means "self-satisfied" -- and even if the title seemed smug, I didn't feel that way at all. When I wrote the post I was a bit irritated because I have known sincere ULC ministers, and to see them being treated as less "real" than the ministers in Phelps's "God Hates Fags" church just galls me, as I think Phelps' outfit consists of agents provocateur. While I'm willing to tolerate Phelps' crew being considered ministers, I can't accept the logic that they are, but ULC ministers aren't.

And if the state can set standards for ministers, why can't they set standards for journalists? I don't see the constitutional power to do either.
11.13.2007 11:48pm
Fub:
Rock Chocklett wrote at 11.13.2007 4:52pm:
Not exactly. The ULC as a religion or denomination began in 1959. Although TRBC as a local congregation first met in 1956, Baptists have been around for centuries.
Baptist Bible Fellowship International, with which Falwell's Thomas Road Baptist Church was originally affiliated, was formed in 1950.
11.14.2007 1:07am
Fub:
Brice Timmons wrote at 11.13.2007 10:14pm:
The majority of the Japanese people are Shinto/Zen practitioners who revere the traditional gods while still being Zen Buddhists.
Just a minor nit, and I am no expert, but I think the Shinran or Pure Land, and Nichiren sects are far more populous than the Zen sect in Japan.
11.14.2007 1:24am
Brice Timmons (mail) (www):
Fub:

I think you're right. I stand corrected. My personal bias shines through.

Tony:

But being a heretic was not a laughing matter after Nicaea, when it became a secular crime, and a capital crime in 382. Although, heretics were not actually burned till after the fall of Rome, in the 11th century.


Didn't say it was. Just saying that they were Christians, too. I don't think you're right about Heretics not being burned until after the 11th century. I think they got to it earlier, but I'd have to pull out the books.

Jon:
Baptists in the Bible Belt frequently don't think of Catholics as Christians because they view them as worshiping idols and see the Papal See as a heresy in and of itself. Does that mean that any objective authority should define them that way?
11.14.2007 1:56am
AK (mail):
I wrote:

"However, I'm not convinced that the restriction on performing marriages has a rational basis. I really can't come up with a reason for saying that Person X can't bind two people in legal marriage once those people have been licensed to wed by the state."

And alkali responded:

I'm guessing that the underlying rationale is that there should be a person present at the wedding who would be credible and locatable who could testify to the validity of the marriage (the bride and groom were not drugged, under duress, etc.). A genuine member of the clergy would satisfy that criterion. Someone who sent away for an ordination certificate to a P.O. Box listed in a classified ad might not.


I have been assuming that applying for the marriage license requires participation from both parties. I figured that the county clerk who gave the couple their license would be able to determine if one of the parties was drugged or under duress. Whatever ceremony and words are used to begin the marriage are subsequently used doesn't seem to be the business of the state.

It's an odd assumption for me to make, as I was married in a state where only one person needs to be present to apply for the license. In that case, I would definitely want someone responsible to ensure that both parties were entering freely.
11.14.2007 2:38am
Bill Poser (mail) (www):
Bruce Timmons,

I don't know what kind of Buddhist you are, but you're wrong about mainstream Buddhism. Yes, various types of Buddhists revere various beings sometimes dubbed "gods", but for Buddhists these are not gods in the usual sense. For Buddhists, the universe is law-governed, and these laws apply to all beings, including those with powers that appear to human beings to be supernatural. The gods of theistic religions create the laws of the universe (and in most are able to avoid them). "gods", buddhas, boddhisatvas, and the like are subject to the laws of the universe.

As for Japan, only about 25% of Japanese Buddhists adhere to the Zen sect. Jodo ("Pure Land") Buddhism is the most popular form, at around 35%. The remaining 40% are divided among 11 other sects.
11.14.2007 5:15am
Bill Poser (mail) (www):
Regarding Buddhism as atheist, here's a statement by the Dalai Lama, whom I think we can qualify as an expert on the subject:

The Buddhist concept -- everything comes and happen due to law of causality: cause and effect, cause and effect, cause and effect. This indicates there's no central, absolute cause or creator. So since Buddhism do not have a concept of creator, some scholars say Buddhism is not a religion, but science of mind. So Buddhism also kind of atheism.
11.14.2007 5:21am
Brice Timmons (mail) (www):
Hmm... well, I'm not a Tibetan Buddhist. That said, my point of view is that the laws of the universe, or the universe itself, is possessed of a certain divinity. My objection is to the characterization of Buddhists as "atheists" is that "atheism" is a loaded word implying a belief that the universe is possessed of no divine nature, though that would more properly be called anti-theism I suppose.

I've already conceded my incorrectness regarding the makeup of Japan's religions. Thank you for pointing it out again. I wasn't, by the way, wrong about the relevant part of that statement that Shintoism is widely practiced alongside Buddhism. To be a Theist does not require by any stretch of the imagination that someone believe in a creator God, a la Christianity, but even Shintoism has the concept of Kanagara No-Michi, essentially comparable to Tao. While neither of these is a creator god, it is a universal sort of divinity that, in my opinion, precludes being anti-religious.
11.14.2007 11:55am
GeorgeH (mail):
Most states recognize unions officiated by the Universal Life Church. Does Pennsylvania give them full Faith and Credit. If not, they are in deep poo. If they do, then they are being silly.
11.14.2007 2:11pm
Brice Timmons (mail) (www):
Correcting my previous statement, one does not have to stretch the imagination too far to define Theism in the aforesaid way. Taken in a moderately broad sense, the belief in any deity or divinity is theistic.

I'm also a little insulted (though I probably shouldn't be) at the characterization of my religious views as being somehow outside the mainstream of Buddhism. Having looked back at what I wrote, I can't fathom where that came from. Further, at no point did I suggest that I or any other Buddhist does or should revere any creator deity or deities. Characterizing my comments that way merely creates a straw man, begging to be toppled.
11.14.2007 2:17pm
Joel Rosenberg (mail) (www):
alkali: I think your error is the Pathetic Fallacy; imputing an underlying rationale, or rational basis, to the law. I think laws do, upon occasion, have an underlying rationale, but I don't think this one does.

Goobermunch: for self-defense, I think the reliability of the mechanism is more important than the caliber; while I own a revolver in .45 ACP (and several in various flavors of .44), my usual carry piece is a .38 snubby, frequently a Detective Special.

Waldensian: well, yeah, I'm scared.

Getting back to the original posting, and with all due respect to our host: well, yeah, but I think that arrantly stupid decisions like this one are exactly the sort of thing that a hypothetical diety probably should have created "smug textualism" and other forms of cheap scorn for. (Whether or not such a diety exists and/or did so is a matter upon which the Congregation of the Appropriate Revolver takes no official position.)

Granted, that would probably be the wrong form to use in writing an appeal ("And beyond that question, the appellant notes that the Court's mother met its father only briefly, during a commercial transaction in an alley behind a pool hall, that its sister swims after troop ships") . . .
11.14.2007 3:19pm
ReaderY:
There is a difficulty here when the word "religion" isn't permitted to have any content. If the state can't have a content-neutral test for addressing the legitimacy of a claim that one is a church or a minister, certain difficulties arise.

Can an entity that walks, waddles, and quacks like a business corporation avoid paying taxes or observing discrimination laws simply by declaring itself a church and declaring its activities to be religious worship?

There are hard cases because real churches regularly do many things, like education and health care, that business corporations also do. The test Pennsylvania has chosen is not necessarily ideal. But I think Pennsylvania is entitled to assure itself that there is some actual religion being practiced by those claiming religious priveleges, so long as it does so without interfering with the content of that religion. Simply receiving money and delivering certificates over the internet would seem to be more in the nature of what business corporations do than having anything to do with religion.
11.16.2007 2:10am
ReaderY:
A similar issue arises with education. Education is also heavily protected by the First Amendment, yet states have the right to say that simply receiving money and providing a certificate is not an act sufficiently educational in nature to entitle an institution to the priveleges and protections they normally afford educational institutions.
11.16.2007 2:13am