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- Title
BY THE POWER VESTED IN ME? LICENSING RELIGIOUS OFFICIALS TO SOLEMNIZE MARRIAGE IN THE AGE OF SAME-SEX MARRIAGE.
- Authors
STEVENS, ANDREW C.
- Abstract
State recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment. For example, all states license religious officials to solemnize civil marriage, a ceremony required for a valid marriage in all states. Could a state that has recognized same-sex marriage require its licensed religious officials to administer their licenses in such a way as not to discriminate against same-sex couples? Or would such a law violate the free exercise rights of that licensed religious official? Or, conversely, is the very practice of state licensing of religious officials to solemnize and enact civil marriage an impermissible establishment of religion in violation of the Establishment Clause? This Comment argues that (1) the Free Exercise Clause, as currently interpreted, does not protect licensed religious officials from a law forbidding them to discriminate against same-sex couples and (2) the typical marriage solemnization ceremony by a licensed religious official violates the Establishment Clause. This Comment also presents several solutions to remedy these paradoxical outcomes under the law. First, as to the Free Exercise Clause issue, this Comment proposes both statutory and judicial remedies that would exempt licensed religious officials from laws that prohibit discrimination in exercising marriage solemnization licenses. Second, as to the Establishment Clause issue, this Comment proposes narrow time, place, and manner restrictions on religious weddings and consecrations of civil marriages that would remedy the Establishment Clause violation without requiring states to strip religious officials of their licenses to solemnize civil marriage.
- Subjects
UNITED States; CIVIL marriage laws; LICENSES; SAME-sex marriage &; religion; FREEDOM of religion; UNITED States. Constitution. 1st Amendment; LEGAL status of gay couples; WEDDINGS; ESTABLISHMENT clause (Constitutional law); LAW
- Publication
Emory Law Journal, 2014, Vol 63, Issue 4, p979
- ISSN
0094-4076
- Publication type
Article