Posted July 15, 2014 2:23 PM
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Court flags wedding inequity

Frank H. Easterbrook
Frank H. Easterbrook
By Patricia Manson
Law Bulletin staff writer

Indiana is trampling on the U.S. Constitution by allowing certain clergy members to perform legally binding marriage ceremonies while barring their counterparts in secular or other religious groups from doing the same, a federal appeals panel has ruled.

“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,” Judge Frank H. Easterbrook wrote for a three-member panel of the 7th U.S. Circuit Court of Appeals.

The panel held Monday that an Indiana law violates the First Amendment and the equal protection clause by excluding certain people — including the leaders of organizations that promote ethical living without belief in a deity — from the list of those who may solemnize marriages.

Secular humanists are not the only individuals who are deprived of their rights under the statute, the court wrote, noting it also discriminates among religions.

Although it includes a few exceptions, the statute generally bars members of religions that are not led by clergy or do not view marriage as a sacrament from solemnizing marriages, the panel wrote.

This setup, Easterbrook wrote, leads to irrational results.

But instead of striking down the statute, the panel directed U.S. District Judge Sarah Evans Barker of the Southern District of Indiana to issue an injunction allowing individuals certified by the Center for Inquiry Inc. as “secular celebrants” to legally solemnize marriages in the state.

The panel also suggested that Indiana lawmakers consider amending the statute to allow notaries to perform marriage ceremonies.

The Center for Inquiry is a nonprofit group based in Amherst, N.Y., that promotes adherence to ethical values based on science and reason rather than religious dogma.

Reba Boyd Wooden, the executive director of the Center for Inquiry in Indiana, is one of 23 certified secular celebrants in the United States.

In a lawsuit filed in 2012, the center and Wooden — other plaintiffs eventually dropped out of the case — challenged Indiana’s marriage-solemnization law.

Named as defendants were the officials who enforce the statute in Marion County.

Among the individuals who may officiate at marriage ceremonies under the statute are judges, mayors and clerks of court or of towns or cities.

Also authorized are such clergy members as imams, priests, bishops, archbishops, rabbis and ministers of the gospel.

Ceremonies also may be performed by the Friends Church, the German Baptists, the Church of Jesus Christ of Latter-day Saints and followers of the Baha’i faith.

It is a crime for anyone not on the list to purport to perform a marriage ceremony.

Barker declined to enter an injunction that would allow secular celebrants to perform legally binding wedding ceremonies. She entered judgment in favor of the defendants.

But the 7th Circuit panel overturned Barker’s decision.

Citing cases that included Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), the panel wrote that the government may not prefer one religion over another.

“The Supreme Court also has forbidden distinctions between religious and secular beliefs that hold the same place in adherents’ lives,” Easterbrook wrote, citing cases that included Welsh v. United States, 398 U.S. 333 (1970).

For example, he wrote, Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005), holds that “when making accommodations in prisons, states must treat atheism as favorably as theistic religion.”

“What is true of atheism is equally true of humanism, and as true in daily life as in prison,” he wrote.

The panel rejected Indiana’s argument that humanists are not excluded from the ability to solemnize their marriages in a way that expresses their views.

The state contended that humanists can achieve that goal by taking part in a ceremony performed by a secular celebrant and then making it legal before a clerk of court or other government official authorized to solemnize marriages.

Humanists, the panel wrote, should not have to take that extra step.

“Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists cannot,” Easterbrook wrote. “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.”

The panel also was not impressed with the suggestion that humanists who want to solemnize marriages should declare — falsely — that their belief system is a religion.

“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,” Easterbrook wrote.

Joining the opinion were Judges Richard A. Posner and Ann Claire Williams. Center for Inquiry Inc., et al. v. Marion County Court Clerk, et al., No. 12-3751.

Kenneth J. Falk of the Indiana Civil Liberties Union in Indianapolis, who argued the case on behalf of the plaintiffs, could not be reached for comment.

Indiana Solicitor General Thomas M. Fisher argued the case on behalf of the defendants.

In a written statement, Indiana Attorney General Greg Zoeller said the state is considering its next move.

“We will review the 7th Circuit’s decision to determine the options to appeal on this narrow but important question of state legislative authority,” Zoeller said.


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