A blog about (ir)religion, ritual and so on …

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 …

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5 thoughts on “Fight for your Right to Ritual

  1. Did you read the press release from CFI? They don’t give the impression that they are seeking to be recognized basically as a religious group. Instead they talk about equal protection and privileging of religious groups. In other words, they’re saying it’s not right to allow religious leaders to solemnize marriages, but not leaders of nonreligious groups. They’re not asking to be recognized as a religious group, which would be pretty useless given the large number of different groups nonbelievers belong to (from secular humanists to American Atheists). “This represents a preference for religion over non-religion in violation of the Establishment Clause of the First Amendment, and denies rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. ” If anything, their press release suggests they’d be happy for a ruling that only certain civil leaders can legally solemnize OR a decision ruling that solemnization must be opened up in some way (to established group leaders or to the general public that gets a license or something).

    Also, while you are technically right about having anyone officiate over a marriage, the issue at hand is that you must have multiple ceremonies if you wish for a secular celebrant, for example, to conduct your marriage ceremony. That gives religious individuals special rights over nonreligious (actually, if you read Indiana’s law, it preferences specified religions over others as well as the nonreligious).

    It’s all well and good to say that they should challenge religious exceptionalism head-on, but pragmatism is also very important. To bring a suit like this isn’t cheap, so those litigating it have to decide what is going to actually get results and be of use.

    • Amanda thank you for your response. I have to admit that I had not seen the CFI’s press release prior to writing my post. I had only read the one from the ACLU. The two differ in the way they frame the issue, which is itself quite interesting. The biggest difference is that the ACLU uses the language of religious practice to put the CFI, as a community, on the same plane as a religious group. For instance:

      The Center for Inquiry and the executive director of its Indiana branch, Reba Boyd Wooden, along with two longtime CFI-Indiana members from Kentucky who wish to marry in Indiana, are plaintiffs in the lawsuit. CFI’s Secular Celebrant program trains participants to conduct marriage ceremonies in accordance with the center’s essential beliefs, so that its members can have meaningful weddings featuring an assertion of their philosophical and ethical views. CFI believes in fostering a secular society based on science, reason, freedom of inquiry and humanist values in which the dignity and fundamental rights of all individuals are respected. CFI does not oppose the free exercise of religion.

      So while the complaint may technically be about disestablishment and equal protection the ACLU has quite clearly made a comparison between the activities of the CFI and those of religious communities and presented the former through the language of the latter. The CFI press release rather distinctly does not do this, so you make a good point there. The CFI frames this as a disestablishment issue and at the very least suggests that “religion” as a broad category should not be established anymore than a specific religion should be. For instance:

      This represents a preference for religion over non-religion in violation of the Establishment Clause of the First Amendment, and denies rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

      As I mentioned in my post our culture has long had a preference for “religion over non-religion” in the sense of religious exceptionalism and this has been reaffirmed by the courts several times (as recently as the unanimously decided Hosanna-Tabor case). So the CFI may in fact be pushing directly against this form of religious exceptionalism but is the ACLU? It doesn’t seem that way to me. It seems like they are trying to squeeze the CFI into the already existing space our culture has carved out for religion. You may be right that the CFI is not itself seeking to be recognized as a religious institution but I do think that the ACLU is arguing that they should be treated “as if” they were one in this context. Is it because the ACLU thinks that such a strategy has a better chance for success or are there a deeper more unconscious set of assumptions at play here?

      Regarding the issue of solemnization and secular people needing to have multiple ceremonies that’s not entirely accurate. There are a variety nonreligious officiants who are technically registered as “religious ministers” by way of groups like the Universal Life Church who perform legal ceremonies that are nonreligious in content. My wife and I had a ceremony like that here in MA and I do research with other people who have had similar ceremonies throughout the Northeast. The issue is that in order for someone trained by the CFI to conduct ceremonies in that capacity they would also have to become nondenominational ministers in the eyes of the state, which clearly they would not want to do. They might argue that being forced to do so goes against their “essential beliefs” or perhaps even violates their “irreligious conscience.”

  2. Reba, thank you for directing me to the official complaint by the CFI, but just to be fair to myself I’m going to point out that it was not in fact “linked to” in the ACLU press release I read. Before I discuss the complaint further I want to clarify something important here…

    I am 100% in support of all Americans, including members of the CFI, being able to have one officiant perform one wedding ceremony that legally solemnizes their marriage while also expressing their essential beliefs. As I stated already my wife and I had such a ceremony, outside of the any religious institution and without invoking any relationships to supernatural agents. I am not in any way trying to argue against others having that same privilege. Now onto the official complaint…

    Having read the complaint, I have to say that I think it only reinforces my original point because it frames the issue, as the ACLU press release did, in religious terms. By religious I do not mean theistic, but religion is much more than one’s belief in deities. Religions can also be said to contain communities centered around “meaning, values and ethics,” much like the complaint professes about your secular community. Religious institutions are also often in the role of providing ethical guidance for their adherents. Here’s how the complaint describes the CFI’s institutional role:

    The Center for Inquiry offers a non-religious template that may guide persons in pursuing fulfilling and humane lives — lives that are rich intellectually, ethically, and emotionally — without reliance on religious faith.

    The Center for Inquiry therefore presents for its members and supporters a detailed structured philosophy of life.

    To me that sounds like the CFI fulfills some of the most important institutional functions of religion for people who lack theistic beliefs. Here’s how the complaint presents CFI ceremonial practice specifically:

    Reba Boyd Wooden and other secular celebrants believe that being able to publicly proclaim their belief and philosophy of non-religious but ethical living in the course of marriage ceremonies is an important part of their belief system and their ability to express their beliefs.

    As I stated above, I agree with the point of your argument Reba. I think you should be able to do this, but that wasn’t the point of my post. My point was that the matter is being framed in the language of organized religion. In fact the complaint even describes the couple in question as adherents of the values that the CFI expresses institutionally — “[t]hey adhere to the values of the Center of Inquiry…” It is possible of course to have an atheistic religious community and in fact Ethical Culture is often described that way and some other Humanist groups are often derided that way by other atheists.

    I’m assuming that the CFI would not accept the label “atheistic religious community,” however, nor should they in that case. If that is true then I merely suggest considering the way you’re framing your ceremonial practices in this court case. To me they follow the language of religious exeptionalism. As I pointed out already, I believe they also conflate the civil and religious functions of marriage in doing so, much like, I would argue, the tradition of marriage law in our nation already tacitly does.

    Now while I did not go further than these suggestions originally maybe I should do so now. What would winning this case, on these grounds, do for marriage law in general? I believe it would further solidify the status quo, since at most I see the complaint opening the door for groups which are “like religious communities,” to have the same privileges that religious communities already do. So what about people who want to be married outside of any community (including yours), in a fashion that fits their personal values? Do they have to choose between your values, the values of a particular religion or the options that you are yourselves so clearly rejecting for your members (judges, clerks, etc)? Winning a case on these grounds solidifies that fact that only if you have a clearly defined institution representing your beliefs will you have this as an enshrined right.

    The reason I mentioned the colonial era in my original post is that the officials who performed marriages then used to represent civic communities, not religious or irreligious ones. If you want my opinion, I would say that making the legal solemnization of marriages into a completely civil matter in the eyes of the law, is preferable if we want to disentangle the mess that marriage law is. This would not preclude priests, rabbis or secular celebrants from filling this civil role, but it would mean that doing so would be a matter separate from the roles they fill in their respective (ir)religious communities.

    Consider the fact that the Supreme Court has unanimously decided, in Hosanna-Tabor, that the federal government cannot mess with the hiring, firing (and clearly training) practices of religious institutions when it comes to their religious leaders. This means, ironically, that the state has no say in the hiring, firing or training of some of its own representatives when it comes to solemnizing marriages. I personally think its time we disentangle the religious from the civil when it comes to marriage law once and for all. While I see your lawsuit as an opportunity to raise important questions, I do not see it actually arguing towards that end.

  3. Pingback: Marriage Law, Agents of the State, and the Ministerial Exception « irritually

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