The Volokh Conspiracy - A Minor but Annoying Example of Unconstitutional Religious Discrimination in Virginia Marriage Law:

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.

	[Ilya Somin, July 2, 2009 at 12:05am] Trackbacks A Minor but Annoying Example of Unconstitutional Religious Discrimination in Virginia Marriage Law: 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.