Fight for your Right to Ritual
With Obama’s public declaration of support for gay marriage still reverberating throughout the nation this story is bound to get little attention. The ACLU of Indiana recently filed a lawsuit against the state of Indiana over wedding rights. Yes you read that correctly, wedding rights. Their complaint is not about the right to enter the institution of marriage, but the right to do so in a certain way. From the ACLU press release:
Indianapolis – Indiana allows religious groups to perform marriages in accordance with their beliefs. But marriages performed by a non-religious group that trains and certifies secular celebrants are not recognized by state law — a violation of the U.S. Constitution.
“From a First Amendment perspective, it is proper and necessary for the state to allow religions to marry people according to their beliefs,” said American Civil Liberties Union of Indiana Legal Director Ken Falk. “However, the state law becomes unconstitutional under the Establishment Clause when you say that religions are the only groups with rights to have their beliefs recognized in marriage ceremonies.”
Falk said the statute, Indiana Code § 31-11-6-1, also violates the Equal Protection Clause of the Fourteenth Amendment because it denies the non-religious group its rights to spread its “essential beliefs” by performing marriage ceremonies, while allowing religious groups those same privileges.
Detractors of the complaint could easily argue that there is no law preventing nonreligious groups in Indiana, or in any other state, from spreading their “essential beliefs” through ritual practice. The right to ritual is already enshrined in rights to free expression and assembly. Couples are free to have a leader from the Center for Inquiry (on whose behalf the lawsuit was filed) or any other irreligious institution, officiate a ceremony for them. What these leaders cannot do in Indiana is to solemnize the marriage in the eyes of the law. Yet what does making it legal have to do with spreading “essential beliefs?” Nothing particularly, and that leads to a vital question.
Why should any religious official have the right to spread the essential beliefs of a religious community while acting as a representative of the state? In order to argue for the equal rights of their clients the ACLU has had to claim that from “a First Amendment perspective, it is proper and necessary for the state to allow religions to marry people according to their beliefs.” But in the ACLU’s statement two forms of “marriage” become conflated; one is religious and the other is civil. As we know religious and nonreligious groups are already on equal footing when it comes to performing rites of the (ir)religious sort, but only one group is currently vested with the power of the state to actualize those of the civil sort. Does the First Amendment really profess that it is “proper and necessary” for any group (religious or otherwise) to be vested with that civil power?
A little historical context could be useful here. Colonial era marriages were almost exclusively civil. The Puritans of New England, who were fervent Reformation anti-ritualists didn’t believe that marriage was a sacrament. Civil magistrates performed wedding ceremonies in those days and continued to do so even after the British crown opened the field up to clergy (no doubt because of their very close relationship to the Anglican Church … aka themselves). After the Revolution, the drafting of the Constitution, and yes the addition of the First Amendment, weddings remained a mostly civil affair. Clergy could, of course, perform them in a civil capacity according to state laws, but even so most people didn’t have a church wedding until it became fashionable to do so in the Victorian era.
While I would never invoke originalism, it is interesting to wonder how the Framers would have considered this question, given the very different context in which most marriage rites were performed at the time. It is also important to remember that most marriage law is not regulated by the federal government. Why is that important? Because the enshrined practice of allowing clergy to represent the state in the matter of marriage has been the product of state law making. It may very well relate to the freedom of religion conceptually, but it would be difficult to claim that it relates specifically to the intent of the First Amendment. Of course the more important questions still remain. Far from being protected by the First Amendment, might this long established practice not in fact run contra to it? And if it does why has it never been challenged?
We have long been willing to grant religion an exceptional place in our society. For instance consider the recent unanimous decision in the Hosanna-Tabor case. There is apparently no debate among the Supreme Court’s justices about whether or not religion is sui generis in the eyes of the law; it just is. How far religious rights extend may be debated, but that religion is somehow a category unto itself is to be taken for granted. What has happened historically when nonreligious groups want to be vested with the power to wed their constituents is that they have been recognized as if they were religious. That is how the “leaders” of Ethical Culture are granted the power to legally perform marriages for instance. That is also what the ACLU seems to be asking for now; that the state of Indiana recognize the Center for Inquiry as if it were a religious institution.
Why exactly does the ACLU, or more importantly the Center for Inquiry want to challenge marriage law on that premise? It seems backwards to me. Why not argue that current practices vis-à-vis allowing clergy to act as representatives of the state while performing their religious duties are themselves unconstitutional? In other words, why not challenge religious exceptionalism head on? Either way one could only hope this case and others like it raise important questions in the halls of power about the tangled mess of marriage laws we have. If the federal courts and federal lawmakers were actually to untangle that mess we might end up with a simpler collection of laws that reflect the spirit of our Constitution a bit better all around. And yes I’m thinking here again of Obama’s announcement this week …