| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
01 Feb 2004 04:26:41 AM |
| Object: |
Re: Unconstitutional requirement for a marriage license? |
"James L. Ryan" <taliesinsoft@mac.com> wrote in message
news:0001HW.BC41C526001B6F5DF02845B0@news.prodigy.net...
Why don't we just get the government out of the marriage game altogether
and
replace it with the notion of "civil union." Such a civil union would
allow
two or more adult persons to declare they have chosen to live in a
communal
state and to share benefits and responsibilities. Such a union could be
anything from the "traditional" marriage of a man to a woman to two or
more
adults, regardless of sex. There is no need for a "ceremony" to bind the
state once it is properly declared, and the union can be disolved with an
appropriate distribution of benefits and responsibilities.
-- James L. Ryan -- TaliesinSoft
Sounds perfectly reasonable to me . . .
I did a little checking, and it seems that a very few states (such as
California) allow "just anyone" to perform a wedding, no need for judges or
preachers; all they need to do is submit a request with $$. In Colorado,
the couple themselves can solemnize the relationship while in the County
Clerk's office, no muss, no fuss (IMHO, an option that should be allowed in
every state).
But in the majority of states, the laws are written so that only Judges
and preachers are allowed to seal a relationship (some states require the
minister to submit only a general document showing they are somehow
connected with a religious organization, others-like Nevada-require the
minister to give a list of his church members and give details of what he
does in his church).
But it seems that some folks see no contradiction between the 1st Amendment
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . " and state laws that allow only
judges and preachers and exclude anyone else in performing marriage
ceremonies. Here's a few sample state laws (Arizona, Washington, and Ohio):
State of Arizona:
http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/25/00124.htm&Titl
e=25&DocType=ARS
25-124. Persons authorized to perform marriage ceremony; definition
A. The following are authorized to solemnize marriages between persons who
are authorized to marry:
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created
by an act of Congress if the judges are entitled to hold office during good
behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals.
B. For the purposes of this section, "licensed or ordained clergymen"
includes ministers, elders or other persons who by the customs, rules and
regulations of a religious society or sect are authorized or permitted to
solemnize marriages or to officiate at marriage ceremonies.
----
Rules for Washington State:
http://www.metrokc.gov/lars/marriage/question.htm#who
Who Can Perform the Marriage Ceremony?
10. Who is authorized to perform marriages?
State law prescribes who can marry. Under R.C.W. 26.04.050, active and
retired justices of the supreme court, judges of the court of appeals,
judges of the superior courts, superior court commissioners, any regularly
licensed or ordained minister or any priest of any church or religious
denomination, and judges (SEE LIST: 37KB DOC , 22KB RTF ) of courts of
limited jurisdiction may perform marriages.
------------------
State law for Ohio:
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.
htm&cp=PORC
section 3101.08 Who May Solemnize.
An ordained or licensed minister of any religious society or congregation
within this state who is licensed to solemnize marriages, a judge of a
county court in accordance with section 1907.18 of the Revised Code, a judge
of a municipal court in accordance with section 1901.14 of the Revised Code,
a probate judge in accordance with section 2101.27 of the Revised Code, the
mayor of a municipal corporation in any county in which such municipal
corporation wholly or partly lies, the superintendent of the state school
for the deaf, or any religious society in conformity with the rules of its
church, may join together as husband and wife any persons who are not
prohibited by law from being joined in marriage.
----------------
Here's a list of who is authorized to perform marriage ceremonies, state by
state:
http://usmarriagelaws.com/search/united_states/officiants_requirements/index
..shtml
----------------
Again, IMHO, an atheist couple is wronged when a state limits their choices
to either a judge or a preacher, as there are many more preachers than
judges, and a theist couple will have a much easier time finding a preacher
to solemnize their relationship (usually their own), while non-theists are
not allowed to ask an atheist friend to do the same. Of course, as the
1st Amendment says, "Congress shall make no law respecting an establishment
of religion," there is no reason for states to establish religious officials
as a special group invested with a legal authority to change a couple's
legal status in the first place.
The solution . . . to make the system equitable to everyone and to comply
with the 1st Amendment, would be to either eliminate the preachers from
their current role, and process every couple through the same secular
system. OR, each state should allow anyone (including preachers) to
solemnize relationships. Clearly, the current laws create unequitable
conditions for theist and non-theist couples.
Some objections have been made to the effect that it is not in the state's
interest to let "just anybody" perform marriages. IMHO, state licensed
marriage counselors would be a far better choice for performing marriages
than preachers who often lack any training whatsoever in maritial
relationship issues, yet there is no state that prohibits clergy and
mandates licensed marriage counselors. So, it's clear that states have not
made their laws with this concern in mind.
Some objections have been raised that this is a non-issue, that I should
"mind my own business," and that there is not a problem when a state law
elevates religious officials to the same level of elected/appointed judges
in matters that affect the legal status of a couple.
I disagree.
The issue of marriage is pretty hot nowadays, with the President of the US
supportive of an amendment to the Constitution restricting it to
heterosexual pairs. Being gay, and expecting to someday need the same
legal rights available to non-gay couples, it is in my interest to see that
the religious bigotry that so often affects gay people is detached from the
legal institutions that affect my life (and my 14th Amendment rights to
"Life, Liberty, and the Pursuit of Happiness . . .).
Most state marriage laws fail a couple of tests used by the US Supreme
court . . . the Lemon test, and the Endorsement test.
The Lemon Test, from the 1971 US Supreme Court decision "Lemon vs
Kurtzman," says that in order to pass muster, government conduct (1) must
have a secular purpose, (2) must have a principal or primary effect that
does not advance or inhibit religion, and (3) cannot foster an excessive
government entanglement with religion. The laws I cited above,
(1) may have a secular purpose, in that it makes it easier for folks to get
married by increasing the number of people authorized to perform marriages.
(2) advances religion, in that the only other class of people authorized to
perform marriages are religious officials. Atheist leaders are not
similarly authorized. Agnostic leaders are not, either, or leaders of
Doubters, Skeptics, Perplexed, or leaders of other non-theistic frames of
mind. Theists have a much broader choice available to them than do
non-theists. So, religious folks resort to religious groups, while the
non-religious are stuck with judges, who are usually theists (and complete
strangers), unsuitable to atheists.
(3) fosters an excessive government entanglement with religion by making
religious officials the ONLY class of people, other than judges, authorized
to sign government documents affecting a couple's legal status. This action
gives the clergy a "priveliged" status in society . . . There is no reason
why Preachers should be the only other people allowed to perform marriages.
In California, anyone can do it, and by gollly, the state hasn't fallen into
the ocean yet! And as I mentioned before, a state registered marriage
counselor will have more expertise with marriage, and there's no reason why
they, or psychologists and psychiatrists, or even social workers, shouldn't
be authorized as well--they'd be better qualified.
There's a reason for everything, and I'm sure the reason why only
preachers are allowed to perform marriages outside of city hall, has less to
do with expertise in marital relationships or what's in the best interest of
the couple, or even what the individual couple might want, and more to do
with enabling them to maintain their monopoly on religious marriage
ceremonies.
So . . . most state's marriage laws fail the 2nd and 3rd prong of the the
Lemon Test . . .
From
http://www.firstamendmentcenter.org/rel_liberty/establishment/topic.aspx?top
ic=public_displays --In addition to the Lemon test, the Supreme Court has
also employed what is known as the endorsement test, a test that emphasizes
government neutrality toward religion. In her concurring opinion in Lynch,
Justice Sandra Day O'Connor, who is widely regarded as the Court's current
leader in establishment-clause jurisprudence, introduced this second
approach to analyzing potential establishment-clause violations when she
noted two ways in which government can encounter trouble with the
establishment clause: through excessive entanglement with religious
institutions and through government endorsement or disapproval of religion.
"Endorsement sends a message to non-adherents that they are outsiders, not
full members of the political community, and an accompanying message to
adherents that they are insiders, favored members of the political
community," Justice O'Connor wrote. "Disapproval sends the opposite
message." ."
. . . so . . . when a state tells a non-religious or atheist couple that
they can choose between a preacher or a judge, they essentially tell them
that they really don't have the same options as religious people do, as they
can't have another atheist (or Doubter or Skeptic or whatever) perform a
ceremony for them. It is unreasonable for the state to assume that an
atheist has equal options if most of the options available are completely at
odds with his opinions on religion . . . With fewer available options,
atheists are not equal, but outsiders in the process. So, these crazy
marriage laws fail the Endorsement Test as well.
There's probably other ways marriage laws fail the Lemon and Endorsement
Tests, these are just the most obvious problems that I see . . . I sure an
experienced lawyer could turn up additional problems . . .
---------
Anyway, the current marriage laws stink because (1) they involve religion
too much, and (2) religious bigotry affects the process -- the religious
prohibitions against gay relationships are allowed to affect what is to
every other instution (like business institutions) in society merely a legal
relationship. And it's high damn time for a change. If I was
heterosexual, I'd file a challenge to the Texas laws, but I'm not, and it's
gonna be a while before the religious bigots even let me file an application
for a marriage license. So, I guess things ain't gonna change . . . and
this long-***** post is really all for nothing, eh?
--Tock
.
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| User: "Al Klein" |
|
| Title: Re: Unconstitutional requirement for a marriage license? |
01 Feb 2004 10:56:29 PM |
|
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On Sun, 01 Feb 2004 10:26:41 GMT, <tock@sbcglobal.net> posted in
alt.atheism:
But in the majority of states, the laws are written so that only Judges
and preachers are allowed to seal a relationship (some states require the
minister to submit only a general document showing they are somehow
connected with a religious organization, others-like Nevada-require the
minister to give a list of his church members and give details of what he
does in his church).
In New York, the list is:
The mayor of a city or village;
The city clerk or one of the deputy city clerks of a city of more than
one million inhabitants;
A marriage officer appointed by the town or village board or the city
common council;
A justice or judge of the following courts: the U.S. Court of Appeals
for the Second Circuit, the U.S. District Courts for the Northern,
Southern, Eastern or Western Districts of New York, the NYS Court of
Appeals, the Appellate Division of the NYS Supreme Court, the NYS
Supreme Court, the Court of Claims, the Family Court, a Surrogates
Court, the Civil and Criminal Courts of New York City (including
Housing Judges of the Civil Court) and other courts of record; a
village, town or county justice;
A member of the clergy or minister who has been officially ordained
and granted authority to perform marriage ceremonies from a governing
church body in accordance with the rules and regulations of the church
body; a member of the clergy or minister who is not authorized by a
governing church body but who has been chosen by a spiritual group to
preside over their spiritual affairs;
Other officiants as specified by Section 11 of the Domestic Relations
Law.
--
"To surrender to ignorance and call it God has always been premature, and it remains
premature today."
- Isaac Asimov
(random sig, produced by SigChanger)
rukbat at optonline dot net
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