By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage

ABSTRACTState recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment. For example, all states license religious officials to solemnize civil marriage, a ceremony required for a valid marriage in all states. Could a state that has recognized same-sex marriage require its licensed religious officials to administer their licenses in such a way as not to discriminate against same-sex couples? Or would such a law violate the free exercise rights of that licensed religious official? Or, conversely, is the very practice of state licensing of religious officials to solemnize and enact civil marriage an impermissible establishment of religion in violation of the Establishment Clause?This Comment argues that (1) the Free Exercise Clause, as currently interpreted, does not protect licensed religious officials from a law forbidding them to discriminate against same-sex couples and (2) the typical marriage solemnization ceremony by a licensed religious official violates the Establishment Clause.This Comment also presents several solutions to remedy these paradoxical outcomes under the law. First, as to the Free Exercise Clause issue, this Comment proposes both statutory and judicial remedies that would exempt licensed religious officials from laws that prohibit discrimination in exercising marriage solemnization licenses. Second, as to the Establishment Clause issue, this Comment proposes narrow time, place, and manner restrictions on religious weddings and consecrations of civil marriages that would remedy the Establishment Clause violation without requiring states to strip religious officials of their licenses to solemnize civil marriage.INTRODUCTIONState recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment to the U.S. Constitution. For example, all states employ sophisticated and nuanced marriage licensing regimes that license religious officials to solemnize civil marriages, a ceremonial act required for a valid marriage in all states.1 A growing number of states have recognized same-sex marriage while protecting their LGBT citizens from discrimination on the basis of sexual orientation.2 But, in those latter states, some religious communities and officials refuse to marry same-sex couples.3 Many same-sex couples regard this refusal as discrimination.4Could a state require its licensed religious officials to administer their marriage licenses in accordance with the state's nondiscrimination laws, and remove their licenses to marry anyone if they refuse? Would such a requirement violate the First Amendment free exercise rights of the religious official or of the official's religious group? Such a law could force decisions by religious officials similar to those of Catholic churches in Illinois, Massachusetts, and Washington, D.C., which terminated their adoption services once those jurisdictions passed laws forcing the Church to consider same-sex couples as potential adoptive parents.5Alternatively, could a state go further and simply forbid religious officials to perform marriages altogether as a mandate of the First Amendment Establishment Clause? The Establishment Clause forbids certain delegations of government authority to religious officials as a violation of the principle of separation of church and state.6 Yet state regimes that license religious officials to enact civil marriage appear to do just that: delegate government authority to religious officials.Has a state created an impermissible establishment of religion when it licenses religious officials to solemnize civil marriages-an unconstitutional condition now finally exposed by the conflicts over same-sex marriage? If so, all state-given licenses would therefore need to be stripped from men and women of the cloth. Is this the beginning of another brave new world-the disestablishment of marriage? …