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Suit challenging Nevada marriage religious test to continue after surviving dismissal motion
Monday, Jan. 23, 2012 | 6:39 p.m.
A federal judge has refused to dismiss an American Civil Liberties Union lawsuit challenging Nevada’s "religious test" for officials to perform marriage ceremonies.
U.S. District Judge Philip Pro, in a ruling signed last week, indicated there may be merit in claims by ACLU attorneys that the religious test is unconstitutional.
The test says marriages can be performed by just two classes of people — those affiliated with a valid religious organization and government officials including judges and civil marriage commissioners.
Attorneys for the ACLU filed suit in March against the state and Clark County, which handles marriage matters in the Las Vegas area.
Their suit represents a couple who want to be married by nongovernmental officials who are not affiliated with a religion. It also represents an atheist and a member of the American Humanist Association who have been denied a certificate to solemnize marriages as well as a notary public who didn’t bother to seek a certificate because she knew she would be denied on the religious-test grounds.
The suit said the religious test violates the constitutional separation of church and state. The plaintiffs said they don’t object to religious officials performing marriages — they object to the law limiting such rights to religious and governmental officials.
During oral arguments in September, attorneys for Clark County asked that the suit be dismissed, saying the fact that a religious test is required for nongovernmental officials to conduct weddings does not necessarily mean the officials’ religious beliefs are part of the ceremonies they perform.
Clark County also argued the county and 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.
In his order last week, Pro dismissed Attorney General Catherine Cortez Masto from the suit after attorneys for her office argued it has nothing to do with enforcing marriage laws, leaving that up to counties.
But Pro refused to dismiss the lawsuit against Clark County, meaning county attorneys and the ACLU will have to provide more briefing to flesh out the issues and potentially go to trial over the constitutional dispute.
Plaintiffs who applied for marriage solemnization certificates but were rejected by Clark County for their failure to be associated with a church or religion "have suffered an injury," Pro wrote in his ruling.
Examining whether the Nevada marital law unconstitutionally advances religion or fosters excessive governmental entanglement with religion, Pro wrote "the last prong is particularly troublesome in this case" because the statute requires county clerks to determine would-be marriage officials are associated with valid religions.
"Were the county clerk deemed to have unfettered discretion to decide if a particular religious organization is a bona fide religion, that would likely constitute a significant entanglement," Pro wrote in his order.
"The Nevada statute appears to give unfettered discretion to the county clerk to decide whether a particular organization qualifies as a religious organization to trigger eligibility for the applicant seeking a certificate," Pro’s order said.
Discussion: 3 comments so far…
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"The test says marriages can be performed by just two classes of people -- those affiliated with a valid religious organization and government officials including judges and civil marriage commissioners."
So if you are married by an Elvis impersonator, which class, if any, does the impersonator belong?
Yours in Elvis Christ,
Rob Whitetrash - Pahrump Deluxe Trailer Park
"Examining whether the Nevada marital law unconstitutionally advances religion or fosters excessive governmental entanglement with religion, Pro wrote "the last prong is particularly troublesome in this case" because the statute requires county clerks to determine would-be marriage officials are associated with valid religions."
It's about time! But they're all still missing the threshold point -- why does marriage require licensing? And what is at the root of government's claim to authority for that licensing? Balanced against consenting adults' fundamental right to privacy in their relationships, the county must lose this one.
"So if you are married by an Elvis impersonator, which class, if any, does the impersonator belong?"
robwhitetrash -- I'm with you on this one. Being a card-carrying saint in the Church of Elvis, this interests me.
"If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system." -- Escobedo v. State of Illinois, 378 U.S. 478, 490 (1964)
Marriage creates a legal agreement between two people, that is then honored by many groups (hospitals, courts, businesses, etc.). The state has some responsibility to ensure that this legal agreement is legitimately created. The expansion of that responsibility to groups other than public officials and clergy should be done by the legislature.
It is time to separate the religious and the secular aspects of marriage. As ScottNV points out, there ARE legal aspects to marriage. These must be made available to all people regardless of race religion, sexual orientation, etc. Each religion has a full right to regulate who it marries and the religious benefits of marriage. By the same token the STATE must have a full right (and an obligation...) to do the same for secular marriages, so long as it does not violate the concept of equality nor the Constitutional requirement to gave full faith and credence to the actions of the other states..
"Marriage creates a legal agreement between two people, that is then honored by many groups (hospitals, courts, businesses, etc.). The state has some responsibility to ensure that this legal agreement is legitimately created."
ScottNV -- look at any legal definition of marriage, it's a civil contract. At the root of our republic is the individual's near-absolute right to make and enforce contracts, which in many Constitutions the state is forbidden to impair.
This is at the root of the whole gay marriage controversy. Considering one keystone of our republic is pursuing happiness as a fundamental liberty, no government authority has any business chilling or otherwise hindering one's exercise of this freedom. So what exactly is your justification for the state's "responsibility to ensure that this legal agreement is legitimately created"?
This interests me greatly since I'm a descendant of Mormon polygamists who were severely persecuted for it. If a group of people capable of consent -- and I'm not counting the B$ of "law" -- wish to be married to each other, the state has no real authority whatsoever to interfere.
"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." -- Thomas Jefferson, letter to Isaac H Tiffany (1819)
The ACLU is a humanist org. and I do not trust anything that they say or do. One minute they are on the criminal's side the next the "good guy". They are a two edged sword and you never can tell which way the sword will swing.
"The ACLU is a humanist org. and I do not trust anything that they say or do."
poppaD -- your choice, but what exactly is your problem with "a humanist org"? Because the ACLU looks out for the rest of us in protecting our civil liberties, they take the burden off lowly individual citizens trying to fight government at their own game. They're heroes in my book.
"...our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load..." -- Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55 (1964)