Scholarly Commons @ IIT Chicago-Kent College of Law

Article Title

Marriage Solemnization and the First Amendment's Neutrality Principle: Who May Solemnize a Marriage?

Authors

Claudia Cortes, IIT Chicago-Kent College of Law

Abstract

The most fundamental principle of the Establishment Clause is government neutrality towards religion. Pursuant to this principle of neutrality, the government may accommodate religious beliefs, but it can neither prefer religion over non-religion nor favor certain religious beliefs. In most states, a marriage does not become legal upon the state's mere issuance of a marriage license. Instead, marriage solemnization is required to create a legally recognized marriage. Marriage solemnization refers to a ceremony or a ritual by which two individuals take on their new status as husband and wife as well as to the set of procedures that must be completed following the ceremony to finalize the marriage. A marriage may only be solemnized by a state-authorized individual. Indiana's Marriage Solemnization Statute, aside from vesting certain government officials with the power to solemnize a marriage, authorized religious clergy and certain religious denominations to solemnize a marriage during their religious ceremonies. The Solemnization Statute provided that anyone who solemnized a marriage without the authority to do so committed a Class B misdemeanor.

Leaders of Center for Inquiry, Inc. ("CFI"), a not-for-profit secular humanist group which promotes ethical living and the pursuit of fulfilling lives without reliance on religion, could not solemnize a marriage during CFI's marriage ceremonies because CFI is not a religion and its leaders are not members of the clergy. CFI thus challenged Indiana's Solemnization Statute under the Establishment Clause, arguing, inter alia, that the Statute violated the First Amendment's neutrality principle because the Statute preferred religion over parallel secular beliefs that function as a "religion" in the lives of individuals. The State of Indiana, however, maintained that the Solemnization Statute was consistent with the neutrality principle as it simply accommodated religion by conferring solemnization authority upon religious leaders, who perform marriages under the commands of their religions. CFI, being a secular, non-religious organization and having no stance on marriage, could not be said to require a religious accommodation. Further, Indiana explained that, under Supreme Court precedent, religious accommodations need not be extended to secular groups to comply with Establishment Clause.

In addressing CFI's challenge in Center for Inquiry, Inc. v. Marion Circuit Court Clerk, the Seventh Circuit correctly held that Indiana's Solemnization Statute violated the First Amendment's neutrality principle because it preferred religion over equivalent secular beliefs. This Note explains that, in concluding that CFI's beliefs were the equivalent of religion, the Seventh Circuit properly employed a broad definition of religion, which has strong roots in Supreme Court's and Seventh Circuit's jurisprudence. This Note also defends the Seventh Circuit's omission of Supreme Court precedent that arguably supports a narrower definition of religion as even a reference to such precedent would have caused confusion as to what is generally regarded as the proper test for ascertaining what qualifies as a religion for First Amendment analysis. Lastly, this Note discusses Supreme Court precedent not addressed by the Seventh Circuit that appeared to support Indiana's contention that it was not obliged to include CFI in the Solemnization Statute to comply with the neutrality principle. This Note explains that such a precedent did not require a different outcome.

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Recommended Citation

Claudia Cortes, Marriage Solemnization and the First Amendment's Neutrality Principle: Who May Solemnize a Marriage?, 10 Seventh Circuit Rev. 32 (2014).
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol10/iss1/3