Who Has the Right to Officiate a Wedding?

Last summer, the Center for Inquiry (CFI), a non-profit committed to fostering a secular society, sued the state of Texas in a civil action suit (NO. 3:18-CV-2943-B) arguing that the state should allow secular wedding ceremonies. The Texas state law declares that only members of the clergy and selective government officials are allowed to lawfully solemnize marriage ceremonies. The CFI argued that this law is an establishment of religion and is unfair to secular celebrants. This law has been upheld by U.S. District Judge, Jane Boyle, who argued “the state has an interest in … ensuring the respect, solemnity, and gravity of marriage ceremonies” and that only religious leaders and government officials can be “reasonably expected” to maintain decorum in these ceremonies. Judge Boyle conceded that the Texas statute may provide a “benefit to religious groups and their adherents over nonreligious ones” but said no “constitutional rights are violated” by the law”.

Section 2.202 of the Texas Family Code specifically only authorizes "persons who are officers of a religious organization and authorized by the organization to conduct marriages (e.g., ministers, priests, rabbis) and secular governmental officials (e.g., current and retired state and federal judges)”. The CFI case was brought up against section 2.202 by two member of the CFI, Eric McCutchan and Arthur Bratteng. They were declared “celebrants” by CFI and want to perform secular wedding ceremonies but are lawfully unable to by Texas law. The Plaintiffs further argued that CFI has members in Texas who would like to be married by these CFI officiants but are unable to solely because of this statue.

Although the case was ruled constitutional, the CFI vows it will appeal the decision. CFI argues that this goes against the establishment clause as it unfairly prioritizes the rights of religious institutions over secular ones. Further, CFI claims it is not the government’s job to declare that people must have solemn weddings. Even if that were to be the government’s right to do so, CFI argues it is not accurate to suggest that secular celebrants could not provide that gravity to marriage ceremonies. CFI feels it is an establishment of and preference to religion to delegate this power to religious leaders but not to secular officiants.

There are currently 35 states that have limits on who can perform marriages, but, CFI has successfully changed similar marriage laws in both Indiana and Illinois. In some states, people who are actually participating in the marriage can officiate their own wedding as well as instantaneous internet officiators. CFI argues that internet officiators can easily get, in their opinion, “fake” religious licenses, but non- religious people cannot pick someone meaningful to officiate their ceremonies. Nicholas Little, CFI Vice President and general counsel, powerfully argues “right now, I can go online and take two minutes out of my time and go to the ‘Church of Bacon’ or something and solemnize a marriage in Texas,” Little said. “Do they honestly want people lying and claiming to be religious like this in order to do a ceremony?”. This begs the question of the social consequences of this law.

In my opinion, this case goes against the establishment clause because it unduly prefers religion over non religion given that the alternative to a religious ceremony is not sufficiently equal. The Texas secular community makes up 1/5 of the population, yet, they are forced to succumb to a municipal employee to officiate one of the best days of most couple’s lives. This statue although facially neutral, in reality, is not neutral as it gives benefits to religious institutions over secular ones. It is not just to compare a religious marriage ceremony to a courthouse wedding. I agree that secular citizens deserve the same respect as the religiously affiliated. Additionally, this case appears hypocritical to both the decisions of “McCollum vs. Board of Education” and “Lemon vs. Kurtzman”. In McCollum, the court ruled that the use of tax-supported property for religious instruction and the cooperation between schools and religious institution was an establishment of religion. In Lemon, the court ruled that state funding for non-public, non-secular schools violates the establishment clause because it did not pass the commonly known “lemon test”. The lemon test declares that states may go against the establishment clause only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state. I believe that this statue does not pass the lemon test because it provides no assistance to the secular side, promotes religious officiants, and entangles church and state by involving the government in marriage practice officiants. If these two cases were ruled as an establishment of religion, the Texas marriage law should be viewed as one as well.

Overall, if the CFI appeals this case, I believe it will be successful. Although this case claims to be neutral to religion and non-religion, in reality, it is a state sponsored practice that unjustly benefits religious institutions. In the words of Little “what if you want to get married by an Elvis impersonator? that’s not the state’s business!”.