Co-blogger Eugene Volokh recently linked to a Virginia state court decision striking down as unconstitutional a state law that allowed religious societies without official clergy to designate only one member as having the power to perform wedding ceremonies, while religious groups that do have clergy can designate more. The court concluded that the First and Fourteenth Amendments bar this law because “The General Assembly [Virginia's state legislature] cannot favor one type of religion over another without a compelling government interest and a narrowly tailored method.”
I think the same reasoning should lead to the invalidation of another form of religious discrimination in the marriage law of our beloved Commonwealth, which I blogged about in this 2009 post:
My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.
Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don’t have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the religious one are exactly identical in every respect other than the fact that one is religious and the other is not (e.g. – if they are equally skilled at performing weddings, have the same high standing in their respective communities, and so on).
Under the Equal Protection Clause of the Fourteenth Amendment, courts strike down state laws that discriminate on the basis of religion unless the law in question passes “strict scrutiny.” To overcome the strict scrutiny hurdle, the state would have to show that the religious classification was “narrowly tailored” to the promotion of a “compelling state interest.” Without going into an exhaustive analysis, I think it highly unlikely that the Virginia marriage law can meet this standard. No good purpose is served by categorically forbidding the performance of marriages by nonresident secular figures, much less a “compelling state interest.”
In the end, my then-fiancee and I didn’t sue, and instead got married in the District of Columbia (in large part because she preferred a site in the District over the Virginia sites we looked at). But had we sued, I think we should have prevailed under the same reasoning as in the case noted by Eugene. The only difference between the two cases is that in one the state is discriminating in favor of some religious officiants relative to others, while in the other it is discriminating in favor of out-of-state religious officiants relative to out-of-state secular ones. But discrimination in favor of the religious against the secular is still clearly discrimination on the basis of religion, and thus subject to strict scrutiny. As the Supreme Court explained in Torcaso v. Watkins (1961), “[N]either a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers.” (emphasis added).
Hopefully, someone else will challenge this small but annoying example of unconstitutional religious discrimination in Virginia marriage law.