County to judge: Dismiss suit over religion requirement to conduct marriages

By Steve Green

Monday, Sept. 26, 2011 | 7:08 p.m.

A judge is weighing a request by Clark County that he dismiss a lawsuit challenging Nevada’s requirement that nongovernmental officials be affiliated with a religion in order to perform marriages.

A lawsuit was filed in March by attorneys for the ACLU against the state and Clark County saying this religious test violates the constitutional separation of church and state as spelled out in the Establishment Clause of the First Amendment to the U.S. Constitution.

That’s the clause that says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Nevada law says marriages can be solemnized by government officials including judges and civil marriage commissioners. Anyone else wishing to perform wedding ceremonies must show they are affiliated with a church or religious organization.

During a hearing Monday before U.S. District Judge Philip Pro in Las Vegas, an attorney for Nevada Attorney General Catherine Cortez Masto said she should be dismissed from the lawsuit since the Attorney General’s office has nothing to do with enforcing the state marriage law, leaving it up to counties.

Michael Foley, a deputy district attorney for Clark County, argued for dismissal of the suit. He said the fact that a religious test is required for nongovernmental officials to conduct weddings does not necessarily mean that these officials’ religious beliefs are part of the ceremonies they perform.

"There is absolutely no statutory requirement that the ministers mention God or perform any religious rites during a ceremony," he said. "The only requirement is that the bride and groom declare in front of the witnesses that they take each other as husband and wife."

Clark County, through the County Clerk’s office, has some 2,000 to 3,000 people licensed to perform weddings, Pro was told.

Foley said the county and the state have a legitimate interest in ensuring marriages are legitimate and are conducted properly – and participation by religious officials in marriages is a custom that predates the Bill of Rights.

"If you allow every Elvis impersonator to go around marrying people, you’re going to have some problems with paperwork and so forth," he said.

Foley said the issue of who should and should not be authorized to conduct marriages should be left to the Legislature.

But Allen Lichtenstein, one of the attorneys who filed the lawsuit, said Pro could simply strike the religious test language from the state statute at issue.

He represents plaintiffs including Raul Martinez and Michael Jacobson, both members of the American Humanist Association who say they were denied certificates to perform marriages because they are not affiliated with a religious organization and humanism is not a religion.

The state laws at issue "advance religion by providing religiously affiliated individuals a certain degree of standing within the political community, while also sending a message to non-religiously affiliated individuals that they are outsiders from the political community, not worthy of privileges available to religious individuals," Lichtenstein wrote in a court brief.

Pro didn’t immediately rule on Clark County’s dismissal request of offer any hints as to how he would rule.