Officials of secular groups must be allowed to solemnize marriages just like clergy can

Indiana law allows clergy members to solemnize marriages: if they conduct a wedding ceremony, the marrying couple is married, with no need for a further proceeding in front of a civil official. It also specifically provides for solemnization of marriages by non-clergy in those religions in which there are no formal clergy, or marriages are solemnized by non-clergy members. (Quakers, German Baptists, Baha’i, Mormons, and Muslims are on that list.) And the definition of clergy seems quite broad: “[A]nyone who obtains ‘clergy’ credentials from an enterprise such as the Universal Life Church can solemnize a wedding,” and “a humanist group could call itself a religion, which would be good enough for the state.”

But someone who insists that he is not religious at all cannot qualify as a celebrant — and this, the Seventh Circuit holds in today’s Center for Inquiry, Inc. v. Marion Circuit Court Clerk (7th Cir. July 14, 2014), is unconstitutional: “An accommodation cannot treat religions favorably when secular groups are identical with respect to the attribute selected for that accommodation,” and the Center for Inquiry and similar secular groups, the court concludes, are indeed identically situated with religious groups.

The court relies heavily on Torcaso v. Watkins (1961), which struck down a state law that barred those who do not believe in God from being notaries, and Welsh v. United States (1970) and United States v. Seeger (1965), which interpreted the conscientious objector exemption from the draft as including people who object to all war for nonreligious philosophical reasons. But the court does not extensively discuss Cutter v. Wilkinson (2005), or Corporation of Presiding Bishop v. Amos (1987), both of which concluded that “religious accommodations” don’t have to “come packaged with benefits to secular entities.” My sense is that Cutter and Amos are best read as legitimizing many (though not necessarily all) religion-only exemptions, and it surprises me that the Seventh Circuit panel did not pay close attention to them. The argument that “[a]n accommodation cannot treat religions favorably when secular groups are identical with respect to the attribute selected for that accommodation” strikes me as appealing in many ways, but I’m not sure that it’s not consistent with precedent (or, to the extent one cares about such things, early American history).

The argument also isn’t limited to this particular form of religious accommodation. Indeed, the logic of the decision also applies to more traditional accommodations, such as religious exemptions from generally applicable laws, and it applies to exemptions that aren’t limited to “groups” or group officials. (The decision itself, after all, heavily relies on claims brought by secular individuals, such as Torcaso and Welsh.) So under this reasoning the protections of the federal and state Religious Freedom Restoration Acts, as well as of state constitutions that have been read as presumptively mandating religious exemptions from generally applicable laws, would have to be extended to conscientious nonreligious objectors as well as religious ones. (This would support Sasha’s July 1 post arguing that RFRA should be seen as unconstitutional, unless it is extended to conscientious objectors.)

Perhaps a court might conclude that certain forms of preference for religion are more justified when serious risk of fabricated beliefs is at stake. The opinion does suggest that the discrimination here is outright “irrational,” partly because Indiana is so open to allow solemnization by anyone who claims religious status, with no inquiry into the person’s sincerity. But much of the opinion seems to rest on the view that it’s just not legitimate to treat religious beliefs better than irreligious beliefs — and indeed Seeger and Welsh (which the Seventh Circuit treats as relevant to the constitutional question) involved a situation where there was a huge risk of fabricated claims, and yet the Court was willing to extend the exemption to conscientious objectors.

Extending religious objections generally to secular conscientious objectors wouldn’t necessarily pose a huge problem: Indeed, the Title VII religious accommodation mandate has been interpreted by the EEOC and most courts to apply to people who object to work rules for secular conscientious reasons, and not just for religious reasons. And of course the conscientious objector draft exemption has been so interpreted as well. Nonetheless, I think it would be a significant step, and one that I’m not sure is consistent with existing Supreme Court precedent. And at least in some cases the extension might pose serious practical difficulties: consider the clergy-penitent privilege, for instance, which many secular people might want to claim as to conversations with their trusted friends and moral advisers (and I mean moral advisers who provide advice for free, and not the much more expensive psychotherapists).

Finally, note that one of the judges on the panel — Judge Posner — had earlier authored one of the few opinions that apparently reads Title VII as not applying to conscientious nonreligious objectors, see Seshadri v. Kasraian (7th Cir. 1997) (seemingly concluding — that the Title VII duty of religious accommodation doesn’t apply when an employee’s belief, “however deep-seated, is not religious”). Under the logic of today’s Seventh Circuit opinion, Title VII, so interpreted, would presumably be unconstitutional; though it might be that Judge Posner has changed his mind since that case.

Thanks to How Appealing for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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