Back in December 2012, I posted on a District Court decision that denied a constitutional challenge to Indiana’s marriage solemnization law (IC 31-11-6-1) brought by the Center for Inquiry seeking to require Indiana to recognize marriages solemnized by humanist secular celebrants. IC 31-11-6-1 provides that marriages may be solemnized by members of the clergy of a religious organization, judges, mayors, county and city clerks and clerk treasurers, the Friends Church, the German Baptists, the Bahai faith, the Mormons, and imams.
At the time of the District Court decision, I wrote:
I think the District Court was probably correct, particularly under existing precedent, that this statute does not violate the establishment or free exercise clauses. It is maybe slightly more burdensome for an atheist to get married than a religious adherent. But, the fact is, the secular celebrant can still preside at your ceremony. You just might have to do a little extra paperwork at the Clerk’s office to have your marriage recognized by the State whereas the Muslim can just have the imam solemnize the marriage.
Today, the Seventh Circuit says (pdf) that the District Court and I are wrong.
The State suggested, among other things, that if the Humanists would just call themselves a religion, that would be good enough for the State and they could solemnize marriages. However, the Seventh Circuit observed that “humanists groups that reject the label “religion” are excluded from Indiana’s list of permissible celebrants.”
The Seventh Circuit says that favorable accommodations of religious groups over secular groups aren’t permissible where secular groups are identical with respect to the attribute selected for that accommodation. Such accommodations have to be neutral, particularly when dealing with religious and secular beliefs that hold the same place in adherents’ lives. The Seventh Circuit had previously held that, when making accommodations in prisons, states must treat atheism as favorably as theistic religion. By extension, this applies to humanists as much as it does to atheists.
The Circuit court agreed that humanists could get married by having a celebrant perform the ceremony which has no legal effect, but then could go to the Clerk to get the marriage solemnized. The fact of having to go that extra step was, the court reasoned, impermissible discrimination by the State.
Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.
And with that wind up, the Court closes in a fairly scathing manner:
These examples, and the state’s willingness to recognize marriages performed by hypocrites, show that the statute violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment. It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.
(Emphasis added).
Boom
Damn. Indiana got schooled, son.
I’m afraid that a thorough and proper schooling would take the courts at least a semester at a ruling per day.
The Court is part right, part dead wrong. Courts should stop using every moment to increase the reach of the 14th, as it’s merely a shameless power grab by the court to broaden their jurisdiction. Nothing in this case or ruling is implicated in the Fourteenth Amendment, and 14th jurisprudence has become a mess of judge-made usurpation where they’ve installed themselves as a unicameral government establishing law based on what they think is a good idea. With the 14th subsuming all federal legislation and being an open-ended outlet to enact whatever current social end the court desires to, the Constitution is out, and “good ideas” are in.
Indiana’s law ran well afoul of the establishment clause in the First Amendment. On those grounds, and on 1st grounds only, the law should have been stricken, and stricken good. It should have been quickly and rudely invalidated by the District judge. The case can’t be any clearer. The Indiana bench is getting roundly and regularly smacked by Chicago. I hope the 7th Circuit is trying to rein in the Mississippi of the North.
What remains puzzling is how courts can see that many of Indiana’s nutty laws violate the establishment clause, but they haven’t found that Indiana’s Sunday sales laws don’t also violate the clause. This glaring judicial inconsistency makes courts appear they’re just enacting whatever suits them.
Oh, Freedom, you come so close. Why does the State have to accommodate the First Amendment rights of secularists (in this case the freedom to not have religion)? Plenty of things annoy this secularist, but happen with government auspices (even non-sectarian prayers at the start of school games or the legislative session, for example), but there are competing interests between me and my evangelical parents.
If the government sides with me, then they are harming the exercise of my parents’ religion. If they side with my parents, then they are establishing religion is better than non-religion. That’s why the 14th Amendment is implicated, because we are all entitled to the same legal rights (unless we go through a due process)
Equality is as nice as Freedom and the incorporation of the 14th Amendment to the States is the greatest thing to happen to law in the last 100 years
Actually, the Supreme Court has made it clear (though maybe it’ll change its mind) that prayers on the PA before public school-hosted games are verboten, because they’re tantamount to a government endorsement of religion. The case was Santa Fe Independent School District v. Doe (Kennedy ruled with the 6-3 majority in 2000). That’s also the case that has school administrators putting the kibosh on official acknowledgements of religion when someone points them out.
http://www.forbes.com/sites/bobcook/2014/04/25/t-shirts-and-ted-cruz-escalating-the-holy-war-over-religion-in-public-school-sports/
Actually, prayers are allowed when given by students at graduations and the like.
That’s only if it’s not school-sponsored. If, say, the valedictorian is giving a speech and decides to say a prayer — without the school’s knowledge that he or she is going to do so — then the school appears to be on solid legal ground, according to this analysis.
https://www.tasb.org/Services/Legal-Services/TASB-School-Law-eSource/Students/documents/pray_or_not_pray_april2010.pdf
However, if the school sets aside time for a prayer, or approves a prayer, or otherwise is involved in arranging a religious ceremony during its graduation or other assembly, then the school is on much shakier ground.
Doug, given you’re the lawyer, does this sound right?
“Why does the State have to accommodate the First Amendment rights of secularists”
Indiana has to accommodate everyone’s 1A rights, all the time, everywhere in the State, without application or request.
“If the government sides with me, then they are harming the exercise of my parents’ religion.”
Not at all. Their evangelical minister can still marry them, just as a curbside philosopher who is a master in Gibran’s “the Prophet” can solemnize an atheist wedding. Neither exercise diminishes the other.
Reserving a legal function only to certain approved clergy is recognizing an establishment of religion, thus violating the 1A. Use judicial restraint; go no further; issue the Order, and close the case.
We have competing 1A rights. Who says whose is more important? Their right to exercise versus prohibition to establish. That’s WHY the 14th Amendment is also implicated.
No, we don’t. Everyone has a 1A right to say the other person is wrong or to say it should be done differently. Lots of 1A occurs, and people choose which ideas they like.
Does anyone know the status of this? What does one need to do to be recognized as a secular celebrant/officiant? The Main Count Clerk’s office still quotes IC 31-11-6-1 as saying you have to be a judge, minister, etc.