Marriage law in my beloved Commonwealth of Virginia has come a long way since the days when its ban on interracial marriage was struck down by the Supreme Court in Loving v. Virginia. However, I recently ran across a case of unconstitutional discrimination in Virginia marriage law that is still on the books.
My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.
Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don't have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the religious one are exactly identical in every respect other than the fact that one is religious and the other is not (e.g. - if they are equally skilled at performing weddings, have the same high standing in their respective communities, and so on).
Under the Equal Protection Clause of the Fourteenth Amendment, courts strike down state laws that discriminate on the basis of religion unless the law in question passes "strict scrutiny." To overcome the strict scrutiny hurdle, the state would have to show that the religious classification was "narrowly tailored" to the promotion of a "compelling state interest." Without going into an exhaustive analysis, I think it highly unlikely that the Virginia marriage law can meet this standard. No good purpose is served by categorically forbidding the performance of marriages by nonresident secular figures, much less a "compelling state interest." Virginia's lawyers could perhaps argue that this ensures that weddings are not performed by people with dubious morals or low social standing. But any such claim would be undercut by the fact that the Commonwealth allows any and all Virginia residents to perform weddings, no matter how disreputable they might be.
The law might also be vulnerable to challenge under the Dormant Commerce Clause, which forbids state discrimination against out of state sellers of goods or services. Some wedding officiants charge for their services, and there is something of a competitive market in this industry. By banning nonresident secular officiants, Virginia explicitly protects in-state officiants against out of state competition. Although Dormant Commerce Clause law is in a state of flux, such "facial discrimination" against nonresident competitors is clearly prohibited by Supreme Court precedent.
Although I am tempted to do so, I probably won't sue. A lawsuit would likely be more trouble than it is worth. There are easier ways around the problem. For example, we might get married in the District of Columbia (which has more enlightened marriage policies), or have Judge Smith perform a small official ceremony in DC before the larger, but legally unofficial wedding celebration in Virginia. There are various other options, too, such as having a Virginia judge present at the ceremony as well (a VA state judge has in fact kindly offered to help us out in this way). If we really have to, perhaps we can get Judge Smith declared a minister of the rapidly growing Jedi religion. Notice, however, that all the possible solutions involve either 1) doing some sort of ceremony out of state, 2) involving a Virginia resident in the process, or 3) lying to the state about the officiant's true status by pretending that he is a religious minister even though he really isn't. Thus, the religious discrimination embedded in this law isn't completely harmless.
Obviously, there are far more important forms of discrimination against the nonreligious in our society. But it's still unfortunate that this one remains on the books.
I totally understand your reluctance to litigate this. First, it's a pain in the ass; and second, it risks imparting a slightly adversarial dimension to your upcoming wedding. (Congrats, by the way.) How does your future bride feel about this? If she's gung-ho to litigate, maybe it can be a project that brings you two together. [the couple that sues together . . .]
On the other hand, the (only??) reason this stupid law remains on the book is that no one ever contests it. I suspect that people say to themselves, "Well, it's an annoyance, but not worth the trouble to fight."
Maybe this can be your legacy. :-)
Suit first, wedding after.
Or he could always get the certificate from the universal life church.
Too bad you couldn't be sure a suit you would file would be heard by Judge Smith, solve the problem in one fell swoop :)
Too bad you couldn't be sure a suit you would file would be heard by Judge Smith, solve the problem in one fell swoop :)
That would be an impressive outcome, considering Virginia is in the Fourth Circuit.
* Any person may be authorized by the state of Virginia to officiate at a wedding.
* No agent exists which can authorize a non-resident of Virginia to officiate at a wedding.
While this may fail to satisfy the non-discrimination against non-residents variation of the commerce clause, it is not a clear cut a case.
Even if I'm right, it might not apply to what Ilya is describing, and I stand to be enlightened.
At any rate, I echo others' congratulations.
I don't recall the part where he said this. In fact, I was pretty sure the entire post was discussing the discriminatory nature of the law. I must have missed the part where he expounded his religious views. In fact, I don't even recall him saying that he was an atheist. You've really impressed me with your intolerance and ignorance, though. Congrats.
The statute pre-dates Smith
That section protects people who honestly believe that their officiant is legal under existing law, even if he or she really isn't (and even then only if the officiant himself believes the same thing). I however, have read the existing law and therefore know that it does NOT permit J. Smith to officiate. So have my fiancee. And Judge Smith is aware of it as well (he was one of the people who told me about the problem in the first place).
A religion can "be something" even if I don't believe in it and even if it's tenets are not true. There is no inconsistency between being an atheist and believing that religion has meaning.
Agree with the above: this sort of nonsense happens because no one ever changes it. I'm not sure if anyone in the Virginia legislature would go for amending the law to remove the religious discrimination, but that might be worth a try. Election wedge issue it is not, but it's the sort of thing that a legislator could quickly bring to a vote. (You could even do this after your wedding, which wouldn't much help you, but would help other people with less legal acumen.)
Either way, my best to you and your fiancee in wedding planning.
Ministers were performing weddings long before officials of the state of Virginia even existed. Ministers are not recognized or certified by the authority of the state of Virginia or any other state. Thus, limiting the authority of ministers not residing in the state of Virginia would be entirely arbitrary. There is absolutely no difference, other than geographic location, between a minister residing in Virginia and a minister residing in Oklahoma. Neither minister has been certified by any state authority or is subject to any state authority.
Public officials, on the other hand, hold office due to the authority of that particular state (or the federal government). While the privileges and immunities clause requires that each state recognize the actions of the public officials of other states which were taken in those other states, there is no requirement that any state grant authority to exercise government powers to public officials of other states. Just because I'm a notary in Louisiana does not authorize me to notarize documents within the state of Virginia.
Thus, a restriction on ministers who may perform wedding ceremonies would be entirely arbitrary, since there is no connection between the minister and the state, no certifications, no examining of the legitimacy of the religion with which the minister claims to be affiliated. But a restriction requiring that only Virginia public officials are authorized to perform weddings in Virginia is entirely reasonable, because their status and authority to perform weddings stems from the sovereign authority of the state.
Now, making an exception for federal judges who are appointed to courts located in Virginia or who are based in Virginia, but not for federal judges located in other states may indeed be an interference with interstate travel and the dormant common clause. If Judge Smith were a 4th Circuit judge, would he be allowed under Virginia law to preside over your wedding? If he were a federal judge for a district court in Virginia?
Of course the example is purely conjectural, but I hypothetically may have contributed to the "growing numbers of Jedi".
I think it's rarely that the promises/intentions one wants to symbolically solemnize in front of friends and family is the same as the legal obligations one undertakes and I at least found it more meaningful to seperate the two ceremonies. Besides, it was kinda fun having a second wedding with just us and a couple friends we dragged along for witnesses.
Besides, as an atheist there are few people you can ask to perform a ceremonial function who you don't know on a personal basis and we felt it was a little weird having someone who was a friend fill in that kind of ceremonial role so we did everything without any officiant (bridesmaids/groomsmen did readings etc..).
Some states, such as Pennsylvania, also have "self-uniting" marriage licenses, also commonly referred to as "Quaker" licenses. No officient, just witnesses.
I've read the Constitution a number of times, as well as all of the Federalist papers. I can nowhere see where there was ever an intent for the courts to interpret the constitution based on "compelling state interest".
You're right; it's not in the constitution. I'm not a lawyer or legal scholar (so perhaps I should be quiet, but obviously I'm speaking up anyway), but I think the rationale emerged from a series of cases since c. WWII about the states' (and the state's) power to impinge on certain liberties guaranteed by the Constitution. The idea, apparently, was that certain liberties can be circumscribed only when the state's interest is "compelling" and when the circumscription of the law is the only means available to realize that "compelling interest."
Assuming I'm right, this history does not necessarily justify the distinction. But I believe that is how/when it emerged. As always, I stand to be corrected.
Come on. As a constitutional law professor, don't you want to teach Somin v. Virginia to future classes? How much work would it be? Get married on Saturday, file a complaint the next week. You will probably need one or two briefs for judgment on the pleadings, and go to one or two hearings. Out of pocket, you will probably be looking at three-figures. The litigation would not be more work or much different than your professional research. You already know the caselaw. I would think establishing precedent would be worth as much as an article toward tenure.
If after you started, your wife really wanted more assurance that you were married, redundant marriages are permitted, right?
If you read the post,you'll note that that isn't actually the way the law works.
As for the judge, is he being discriminated against on religious grounds? I don't see it, as any judge from outside Virginia is prohibited from marrying people regardless of the judge's religion.
For that matter, what's the point of posting a bond at all? What exactly is the state worried about?
You don't think there's a correlation between being religious and wanting to be married by a clergyman?
Anyway, I think you should file suit, Ilya. It seems like a pretty straightforward case, and I think you'd be extremely well-qualified to argue it. And as you said, who knows how many people suffer through this all the time without knowing that they're not supposed to?
Just for kicks (which is certainly not legal justification for anything), could one say that what states require is a legal witness to a contract for marriage, and states have decided that certain public figures are qualified for this role because of their status in a community (the state the marriage takes place in).
Religious officials are given this ability because of their assumed public role in the community given their role as religious (which assumes they will be around to confirm their witnessing as needed and that their witness will be sufficiently respected). Due to the fact that atheists do not have an analogous role to clergy they do not have anyone given the same rights. One could say that if there was an atheist:
1. in the recording community (i.e. Virginia)
2. who was publicly known/recorded (elected, ordained, officially sanctioned)
3. recognized as a reliable witness by a large enough section of a community the couple belongs to (clergy, judge, notary public)
then there would have no problem with them signing a marriage certificate. The requirements do not discriminate against atheists in that there would be a place of atheist to officiate if they had something analogous to clergy. The fact that atheists choose not to group together to recognize clergy level leaders is not the states fault.
As a pastor I have to say that it has always irked me to sign a marriage certificate that says that I marry people based on the authority given to me by the state. My authority does not and should not come from the state, it is the result of recognition from a community (my denomination). The above is my best justification for it and while it might be wrong I'd appreciate any comments on it.
Or rather, have your Judge friend become ordained by them, or the Church of What's Happening Now, or whatever. I have a friend who is ordained somewhere, which involved no more than sending in $20, who has officiated at several friend's weddings.
If you don't sue, it might be worth a word with your local state rep, intimating that an amendment to the law would be more efficient in these tough economic times than forcing you to, regrettably, use valuable court time correcting the situation.
How nice of you. Stop your whining. There is nothing more pathetic when the most priveleged among us whine about how every little thing that does not go their way makes them some kind of victim.
If you're consenting adults and your actions will not harm others you ought to be able to enter into any contract you wish in order to define your legal relationship. And if the government is going to place certain requirements on entering such a contract or bestow certain benefits on particular legal relationships (like tax credits) then it should have to bestow those benefits on all similar legal relationships. But to call such legal relationships "marriages" is intellectual theft of a cultural and religious construct and, whether intentional or not, it has the effect of undermining the role of God that is central to the marriage. If folks want to have a personal ceremony after having their civil union contracts legally recognized, I'm all for it. Just call it something else - an Affirmation of Union/Love/Life. I'm sure many will argue this is mere semantics and tangential to the OP. But the Professor (and many others with dissimilar situations but like problems) wouldn't have to deal with this issue if we properly defined the terms of the debate and bifurcated governmental/legal and religious/personal spheres.
In any event, congratulations to you and your fiancee on the engagement, Professor. As a fellow Virginian I wish you both the very best in life and, I hope, one in which you two are the ones to the set the terms of what I'm sure will be a long and wonderful life together.
the quote was:
"My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for."
the words and semiotics of "Atheist" or just "not religious" still take faith in those concepts. I fail to see how an "Atheist" or "not religious" are not in fact "religious". you might as well complain that you are not among the religion of the "flying spaghetti monster". you espouse to be open minded, but you are so close minded on your terms. it is easy to put you in a corner if you want to be there. frankly if you call someone who corrects you "ignorant" you deserve to be in the corner. enjoy your corner. I will decorate it with Emo youth dressed in black
That's the full faith and credit clause, not the privileges and immunities clause of art iv. Different things. In any event, this is a pretty clear violation of the P&I clause. This is facial discrimination against out of state residents with no compelling reason at all. .
Except that the statute allows religious denominations without clergy to choose a member who will perform the marriage. To not permit non-religious groups the same right is in fact discrimination.
I'm sure you can find some magical elixir that will cause you to forget this inconvenient fact just before the ceremony. Since you've forgotten it, § 20-31 will then render your marriage valid.
I don't know if he is, but Ilya sure is. Not every minor violation and triviality is worth making a Federal case of.
That's ok. We'll somehow muddle on without you while you catch up.
This quote bears repeating: atheism is a religion like not collecting stamps is a hobby.
Thanks for the comment.
From my perspective the people chosen would be analogues to clergy in that they are chosen by the group to represent them. My point is that atheists in general have no groups to do the choosing. I'm not supposing that someone could claim the mantle of 'offical atheist', but if there was a group that was officially atheist I would support their right to select members (or any member, like the groups you mention in your post) to officiate at marriages.
First, to the minister who said that the power to marry is not given to him by the state, you are wrong. The power to join two people as married under state law indeed comes from the state. The community is really irrelevant to a marriage. In my opinion, god is irrelevant too, but I recognize that a god may be relevant to other people's marriages.
Second, as for the people who suggested getting an internet-ordained minister, my reading of the statute indicates that people ordained a minister by simply paying a fee are ineligible to be an officiant.
§ 20-23:
When a minister of any religious denomination shall produce . . . proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he holds a local minister's license and is serving as a regularly appointed pastor in his denomination, [a] court . . . may make an order authorizing such minister to celebrate the rites of matrimony in this Commonwealth.
In other words, ministers ordained on the Internet, who likely do not have some kind of following, seem to be ineligible to perform marriages. Am I wrong?
I do accept the power to marry from the state. I struggle if I do not make the marry/wed distinction. I don't want the state in anyway to sanction the weddings I perform, nor do I want to claim the state's sanction for the wedding itself -- the state has no religious authority nor should it deal with theological matters. To be honest, I'd rather not marry (in the legal sense at all, here in Indiana however, one is considered married if they are wedded by a pastor even if they don't have a certificate. I had to not do a wedding because the couple didn't want to loose their status as single for the puroses of state benefits.
Thanks for helping me explain myself.
The Universal Life Church and the Church of the Jedi and similar organizations are based on the theory that the State may not examine the theological undperpinnings (or lack thereof) of religious organizations under the First Amendment or the sincerity of religious belief. Thus, if a "church" chooses to ordain someone, the government has no way to challenge such ordination.
Frankly, no one challenges these with respect to ordination in order to perform marriages. However, I know the IRS has its own regulations to prevent people from creating bogus churches to dodge income taxes (just as the Selective Service did to thwart people trying to dodge the draft).
Whilst celebrating early morning libation services of the First Cuppa Java, a vision of the sometimes risen and sometimes fallen, but never authoritative, archangel of research Wiki came to me. Quoth he, she, it, or a reasonable facsimile: Cramer v. Commonwealth of Virginia, 214 Va. 561 (1974) [PDF], and Opinion of the Attorney General 01-057, November 29, 2001 [PDF].
From this vision it appears that permitting any minister presenting facially valid credentials of ordainment to celebrate and solemnize a marriage is within the discretion of the county clerk of the court.
PatHMV is about the only voice of reason. This law is neither "unconstitutional" nor "discrimination".
If pressed, claim to believe in the existence of a pleasant, helpful brother-in-law.
I would suggest asking for advice on secular weddings from another Virginia institution, this one in Lynchburg, Virginia, known as Liberty Baptist University.
No, it isn't.
True, if you are dead set say on a Lubavitcher rav. But note that there is no Jewish pope who can command all the rabbis. Have mazal in YOUR search.
You must've really gotten on with Judge Smith well, if he is willing to travel that far and perform as many as two ceremonies for you.
There's your problem Professor, assuming that VA residents can ever be disreputable. You see, according to the State of Virginia, being Virginian makes you reputable. Being a non-Virginian means you are presumptively disreputable. They make exceptions for those who have shown their reputability (by becoming religious leaders). It has nothing to do with discrimination. Merely protecting the superior morals of Virginians....
Possibly requiring all officiates to register with the state, religious or not would be a better solution, I'll grant you.
Give me a break. This is facially absurd, and unlike a lot of posters here, I don't throw language like that around lightly.
Hope you bring each other much nachos.
HGB
Not worth the trouble to sue? Just get some student volunteers to do the leg work for you and then you can take credit for it. Heaven knows there are some really smart but unemployed students out there who would love to be involved with something like this.
I disagree; I've found that low intelligence and ignorance usually motivates such prejudices.
(Your username is annoying, so I'm going to call you "scooter," ok?)
What is law, Ilya? Is an ulta vires unconstitutional statute law? Is crazy train right that it's an article IV P&I issue?
Is Justice Thomas right that there is no dormant commerce clause? After Crawford, what is the standard of review for unequal protection of fundamental rights (or fundamentalist rights?) I would be happy to ordain the judge in the Church of Gospel Ministry. I've never ordained anyone, but the guy who ordained me died long ago, and I guess I'm as worthy as anyone to carry on. It's a freethinker sect, so it's unlikely to conflict with the judge's beliefs; he would be a "real" minister. If you get married twice, is that double jeopardy? This scenario could at least make a good exam question. How about a letter to the VA AG requesting an opinion? Actually it works better if the judge sends the letter.
My eldest chose a different approach -- when he got married (an outdoor wedding on the shore of one of the Finger Lakes, with a string quartet playing chamber music) he and his bride were attended by a five year old niece and the ceremony consisted of readings by me and by the mother of the bride and officiated by a dear friend of the bride's family who had gotten herself ordained in order to perform this ceremony.
Governments are troublesome things. And (as Dickens noted) "The law is an ass."
Be creative. There are many ways around their silly rules and regulations. Find a way that works for you.
Best wishes to you and your bride!
Alternatively, does the statute mean that a SCOTUS justice could not perform a wedding in Virginia? Does resident refer to the location of chambers or the judge's domicile? SCOTUS justices perform weddings occasionally. See if you could find a Virginia wedding performed by a DC-living or Maryland-living justice.
Have you written a letter or otherwise contacted a VA legislator to request they review &change the law? It seems to me that your leap to litigation assumes a contrary reaction on the part of many who likely have no idea this discrepancy exists.
Maybe law professors like the litigation phase, but shouldn't we try step one just on principle?
Ignorant was the wrong word. Insane, maybe?
In any case, I still don't see where Prof. Somin said that he has faith in nothing. He said he is not religious. If he is an atheist (and, by the way, atheist and "not religious" are very different concepts) then maybe he does have faith in atheism. You have created a giant strawman suggesting that Prof. Somin claimed he has faith in nothing.
If the clerk has discretion to grant the license to a minister, isn't that discriminatory? I think in Watchtower Bible v. Village of Stratton the Court indicated that giving a ministerial agent discretion to pick and choose who gets a permit to distribute leaflets would be content control. And I think a bunch of other permit cases say something similar (i.e., Forsyth v. Nationalist Movement). It is not an exact parallel to religion, but it is at least the First Amendment.
I cannot see what the governmental interest could support limiting marriage ceremonies to ministers that register with the state and VA citizens that register with the state. Unlike a parade, there is no concern for safety or alternative uses of a parade route. It also seems to be discriminatory against Jehovah's Witnesses, who supposedly cannot get permits or some nonsense.
Under the standard Professor Somin proposes, any accommodation of religion which doesn't also accommodate nonreligious personal choices Professor Somin believes are similar would be "discrimination" and illegal. But that can't be right, because accommodation is mandated by the Free Exercise Clause of the First Amendment. The Free Exercise Clause protects the "Free exercise" of religion.
Religious people "exercise" religion by following certain religious prescriptions, such as requirements that particular personnel be officiants at occassions like weddings. But how exactly do atheists "exercise" atheism?
By requiring government to accommodate religious , prescriptions but not nonreligious personal choices, the Free Exercise Clause necessarily requires, and therefore permits, government to favor relion over nonreligion in precisely the way Prodessor Somin objects to -- permitting religious people to make selections that meet religious needs while not permitting selections not related to a religious "exercise".
The First Amendment is obviously constitutional. Indeed, arguing that a key component of the Bill of Rights is unconstitutional is an absurdity. Because Professor Somin's argument could be valid only if the the First Amendment were unconstitutional, it must necessarily be rejected as incorrect constitutional interpretation. Instead, one has to interpret the constitution in a way that accepts the validity of the Free Exercise clause and harmonizes it with the rest of the constitution's text.
This matter concerns the Clause's permissive reach, which is considerably greater than its mandatory reach. Thus, Smith's narrower view of the Clause's mandatory reach doesn't control this issue's outcome.
The more they accomodate religion, the more they run into an Establishment Clause and Equal Protection problem.
Shame on you! A professor to boot; though I'll overlook it as pre-nuptual jitters.
§ 20-25. Persons other than ministers who may perform rites. Resident, not 'a resident'. Your friend the judge must stay in Virginia some length of time; probably an overnight stay in a hotel and the appearance before the circuit court judge prior to the ceremony. Just watch your Circuits in the NoVA area.
But the next sentence says your friend needs no further authorization:Any judge or justice of a court of record. If your friend is not, then I contend he is unqualified to officiate. But if he is as you claim, then the statute authorizes him to perform the officiation.
Best wishes for the wedding . . . and its followup.
Anyway, once I learned that an acquaintence was a ULC pastor so I begged to be ordained. He looked up from his hippie weekly and said, "You're ordained."
Sure enough, under local law I was ordained. So if you want to be wed here in the Pacific Northwest, Professor Somin, here I am. It will cost you some scotch neat in a place without raucous noise.
The relevant standard is whether an accommodation would actually tend to have this effect. Is this accommodation giving members of a particular religious practice a benefit so much more attractive than what other people get that it would tend to induce them to consider switching religions just to enable them to get the benefit?
The seminal case is Estate of Thornton v. Caldor Inc., 472 U.S. 703 (1985) In that case, the Supreme Court struck down a Connecticut statute requiring employers to give members of religions who observed a sabbath day to give them their preferred sabbath day off. Everybody else got Sunday off. State law did not require employers to give a particular day off to people not observing a sabbath. The Supreme Court held that being able to have a day off. The case involved a person who was required to work on Sundays, and did so for some time, until he informed his employer that he had become religious and had decided to observe Sunday as his Sabbath.
The Court held that having a guaranteed day off a week was a benefit so valuable that people might be willing to switch religions just to be able to take advantage of it. Accordingly, it held that the law tends to so favor sabbath observers as to essentially establish sabbath observance, giving its observers a preference over religions not involving the observance of a sabbath. The Court noted that Connecticut could cure the problem by choosing to give everybody a guaranteed day off, for example providing for Sundays off by default, so that observers of other sabbaths would not have a benefit fundamentally different from observers of Sunday sabbaths or no sabbath.
In Cutter v. Wilkinson, 554 U.S. 709 (2005), the Supreme Court, in upholding the Religious Land Use and Institutionalized Persons Act against an Establishment Clause claim, stressed the limited nature of the Estate of Thornton exception to the general rule favoring accommodation. It also noted, quoting Smith, that "
Professor Somin's claim simply isn't grounded in and can't be squared with the "too much line of accommodation" line of cases. Professor Somin isn't even claiming that religious people have a benefit that would induce him to change religions in order to collect it. He has no interest whatsover in having an out of state minister, or any minister, conduct his wedding. If he had such an interest, he would have picked the minister for religious reasons independent of the state and the state would simply be accommodating his existing preference rather than proving him any inducing benefit.
The Supreme Court has completely rejected the idea of treating religious accommodation as a form of "discrimination". Instead, the Supreme Court has repeatedly permitted state accommodation of religion including treating religious people differently from non-religious people in order to accommodate them, so long as the accommodation does not confer a benefit on those who observe a particular religious practice so extreme as to violate the Establishment Clause by inducing people to observe the practice in order to get the benefit.
Not true. VA also allows all other VA residents to do so, and also leaders of religious groups that don't have formal clergy (even if they live out of state).
There are many problems with this argument. First, VA allows not only ministers but any VA residents to perform weddings. It also allows current or retired federal judges to perform weddings so long as they reside in Va. By contrast, all out of state secular leaders are forbidden from performing them, not just federal judges. Second, the applicable legal standard here is strict scrutiny, since there is a religion-based classification involved (distinguishing out of state religious leaders from out of state secular ones). Under strict scrutiny, it's not enough that VA's law be nonarbitrary. It must be narrowly tailored to the advancement of a compelling state interest - a standard the current law almost certainly flunks.
What's the right in question? The right of an out-of-state resident to perform a secular marriages? Doesn't sound like religious exercise to me.
Or is the right in question it your right to have an out-of-state resident perform your secular marriage? Definitely not a religious exercise issue.
My con law is a little hazy but I don't think you have a leg to stand on.
Do you have an argument to make against the reasoning I've outlined? If so, what might that argument be?
There are many cases where the Free Exercise clause's mandatory reach requires religious people to get benefits that secular people don't, even after Smith. For example, the State, even post-Smith, is required to permit religious prisoners to be visited by a minister of their religious persuasion, but nonreligious prisoners have no equivalent right to be visited by a "secular leader".
The Free Exercise clause's mandatory reach, by mandating that religious people but not non-religious people get certain accommodations, makes precisely the distinction which you claim to be "discrimination."
The Supreme Court has never held state accommodation of religion to be a form of "discrimination", and has never held it to be subject to strict scrutiny except in the Estate of Thornton situation, and the relevant standard is based on the Establishment Clause and has nothing to do with the Equal Protection Clause or any of its categories, rules, or jargon.
I hate to say this, but the Supreme Court's cases are actually quite clear on the subject. The constitution simply contains no such requirement as you've stated. The constitution simply doesn't subject state laws granting special exceptions to ministers etc. to strict scrutiny. The idea that it does is something that you've simply made up. It's nothing more than wishful thinking. Saying it's so doesn't make it so.
You obviously don't like the idea of the constitution having a"free exercise of religion" clause interpreted as giving religious exercises special accommodation rights that secular exercises you think ought to be treated equivalently don't get.
I would suggest that you attempt to garner support for repeal of the Free Exercise Clause. Simply pretending it doesn't exist isn't going to be of much help to you or anybody else.
One might as well argue that the existence of Congress violates the constitution on grounds that permitting members of congress to vote on legislation that non-members don't get to vote on violates the "one man, one vote" principle. The latter principle, however universal and lofty-sounding it may be, isn't actually as universally applicable as it might appear -- it doesn't apply, for example, to congressional votes, however passionately one thinks it ought to. This a similar situation. There are specific clauses in the constitution addressing how government should handle religion, just as there are specific clauses addressing who is eligible to vote on a bill pending in Congress. The general universal-sounding principles simply don't trump the specifics. It's the other way around. One can't simply pick a general constitutional principle and claim it ought to apply when there are specific constitutional clauses and rules addressing the specific subject.
Virginia allows almost any licensed —even previously licensed— judicial figure to officiate. Individual residents may officiate weddings after approval (and perhaps a bond) by the circuit court. This is the foundation of Virginia's law on officiants.
Out of state persons may officiate by 'being resident' and meeting the same requirements (circuit court approval, bond) as state residents. The Circuit's discretion is compelling; non-performance or malperformance of the officiation is a misdemeanor and not subject to interstate extradition. This is to protect those wedded, who often take this matter seriously.
So Somin's statement ". . . the Commonwealth allows any and all Virginia residents to perform weddings, no matter how disreputable they might be." is simply not true. One could structurally argue that residents and those resident are acting as arms of the court, though now is not the place.
However, the above discriminates against religious persons who believe in sacrament marriage. Therefore, the Commonwealth allows religious officiants to qualify as officiants by the same methods as secular individuals; by appearance and authorization of the Circuit, or by posted bond.
Virginia marriage law is narrowly tailored to the advancement of a compelling state interest; to assure the capability and performance of marriage officiants. Those laws are uniform, rational, and secular; yet accommodate religious belief.
Absolutely not!
In what passes as legal wit, Oren links to:
The statute is protection against hidden defects. The marriage [must] be in all other respects lawful (see my previous sentence about 'complies with state requirements') and the persons married know (believe) the procedure is legal.
If the persons are not who is named in the license, the marriage is invalid; if the officiant knows them to be siblings, the marriage is invalid, etcetera. It gives no protection against fraudulent or sibling marriage, misidentification, switched or altered licenses, or any of a host of other flaws. Failure to return the certificate can —see the use of the term 'capable of jeopardizing' above— void a marriage.
If Ilya wasn't so dogmatic about 'discrimination' I'd say his post was a test whether his marriage will be legal with out-of-state Judge Smith officiating and Ilya having doubts of the statute's lawfulness under constitutional muster. The answer to that would be 'yes, the marriage is valid' due to the fact that Smith can officiate and the term "and be consummated with a full belief".
The problem is, VA not only gives this power to judges of VA courts, but also to federal judges - but only if the federal judge is resident in VA. IANAL, but I suspect it would be OK to allow only VA residents the power, or to allow it to ordained ministers of any residence and to only VA judges (who presumably have to be VA residents). But they also allow it to certain judges who were appointed under other than VA law, but discriminate among that third class by residence. They can't argue that there's a compelling state reason to restrict the power of officiating at marriages to VA residents when they'll let other non-residents officiate.
At least, I'd like to see the reaction of a 4th Federal Circuit judge to the argument that his 5th Circuit colleagues are unqualified to officiate at a VA wedding, but a Texan ex-con with a mail-order ordination from CA is.
I don't think that 5th Circuit Judges would be the least bit surprised to learn that Virginia empowers judges who are resident in Virginia are empowered to do things they can't. After, all, numerous state offices have residency requirements, from Elector (voter) to Senator. Numerous priveleges are available only to residents as well. It's not clear that civil wedding officiants are all that unusual in this respect.
One thing missing from this discussion is the whole notion of being a citizen of a state. State citizenship is part of the 14th Amendment - it's in the citizenship clause. If state citizenship had no meaning the Framers wouldn't have bothered to define it. The distinction between citizens and non-citizens is built into the constitution. Distinctions that are built into the constitution are simply not invidious.
One might not like the idea that states can limit certain powers to only their own citizens, but not liking something is different from having a legitimate claim that it's unconstitutional. Like elk hunting in Montana, being a civil wedding officiant in Virginia is not one of the privileges and immunities of citizens of the United States. Making the distinction is within Virginia's ordinary powers, and states distinguish between citizens and non-citizens all the time.
One might as well argue that the distinction between members and non-members of Congress is discriminatory and that it's not fair that members of Congress should get to have a vote on national legislation when other people can't. One can argue it, but such an argument has no basis in our Constitution.
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