News reports indicate that the Oklahoma House has approved a bill that transfers the power to issue marriage licenses from clerks of court to members of the clergy, and that the Alabama House has approved a bill that would explicitly authorize judges and members of the clergy to decline to officiate at specific marriages on account of religious objections. Neither law is constitutional. Both will have serious unintended consequences.
The Oklahoma law will delegate a state function -- the power to determine who is legally married for purposes of state law -- from the government to religious figures. This would be constitutional if the state had decided not to recognize anybody as married ... if it had declared that the law and the government would no longer acknowledge the institution of marriage or to treat anybody as married. (Many of my Libertarian friends have advocated this position. They argue that "marriage" is a religious sacrament, and should not be governed by law. I think that they take this utterly improbable position just so they don't have to take a position on same-sex marriage ... they are marriage equality Mugwumps!) But what the State of Oklahoma may not do is to continue to grant legal rights and responsibilities to married people but delegate the power to issue marriage licenses to religious institutions. Either members of the clergy will now be engaged in "state action" subjecting their conduct to the dictates of the Constitution in violation the Free Exercise Clause of the Constitution, or, more likely, the legislature's delegation of exclusive power to issue marriage licenses to the clergy would simply be struck down as an unconstitutional violation of Separation of Church and State under the Establishment Clause.
The State of Oklahoma cannot save this statute by allowing "other people" whose marriages clergy disapprove of - gays, lesbians, divorced people, first cousins, or atheists - the option of entering into "common law marriages." This clearly establishes two levels of marriage - marriage of the first rank and marriage of the second rank - and amounts to rank discrimination prohibited by the Equal Protection Clause.
One part of the proposed Alabama law is unnecessary and the other part is unconstitutional. Under the First Amendment, it is clear that no minister, priest, rabbi, or imam could ever be called before the law for refusing to officiate at any wedding. Accordingly that portion of the Alabama bill will have zero effect. But judges -- even when performing administrative functions such as officiating at weddings - are government officials who must discharge their duties in a manner consistent with the Constitution. When a judge or a police officer or a mayor or the President of the United States is called upon to perform a legal duty, he or she does not act as a member of any religious body but as an officer of the law. Performing marriages for people who are entitled to marry is a "ministerial duty"; this does not mean that the public official acts as a "minister" but rather that the public official has a clear legal duty to perform that act. Public officials may not deny citizens their clear legal rights just because they object on religious grounds to people having those rights. Hobby Lobby does not extend that far. Citizens who sue state officials will win, hands down, and the state will have to pay attorney fees and costs as well.
It is time for the state legislatures of Oklahoma and Alabama to acknowledge their duty under the law -- to live up to their legal responsibilities. Every single state legislator in this country took an oath to support the Constitution of the United States. The courts have spoken. Gay and lesbian couples in Oklahoma and Alabama have the same right to get married as opposite sex couples. They are entitled to equal rights. Stop trying to nullify the clear command of the Declaration that "all men are created equal" and "are entitled to certain inalienable rights," and the dictate of the Constitution that "No state shall ... deny to any person within its jurisdiction ... the Equal Protection of the laws." Obey the law!
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