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7th Circuit: Indiana's marriage solemnization statute violates Constitution

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Finding that Indiana’s statute specifying who many solemnize marriage “discriminates arbitrarily among religious and ethical beliefs,” the 7th Circuit Court of Appeals ruled the state must allow certified secular humanist celebrants to perform wedding ceremonies.

The 7th Circuit reversed a judgment from the U.S. District Court for the Southern District of Indiana in Center for Inquiry, Inc., and Reba Boyd Wooden v. Marion Circuit Court Clerk and Marion County Prosecutor, 12-3751. The unanimous 7th Circuit panel ordered the lower court to issue an injunction enabling certified secular humanist celebrants to legally solemnize marriage in Indiana.

Indiana Code 31-11-6-1 which allows religious clergy and state officials, such as judges, mayors and county clerks, to perform marriage ceremonies was challenged by the Center for Inquiry on the grounds that the statute omits the equivalent officials from secular groups, such as humanists societies. The center argued the state’s marriage solemnization statute violates the First Amendment of the U.S. Constitution by giving some religions a privileged role.

The state countered that humanists are not excluded under the statute. It contended a humanist group could meet the statute’s requirements for solemnizing marriages simply by calling itself a religion; or, the humanist celebrant could conduct an “extra-legal ceremony” which would be followed by the couple making a trip to the local court to have the clerk perform a legal solemnization.

The 7th Circuit rejected that argument, saying the “ability to carry out a sham ceremony, with the real business done in the back office,” does not address the injury of which the humanists complain.  

Taking a closer examination of Indiana’s statute, the 7th Circuit concluded that the state not only discriminates against non-religious ethical groups but also discriminates among religions by preferring those that have clergy and consider marriage to be sacred.

Consequently, the 7th Circuit ruled the Indiana marriage solemnization statute violates the First Amendment and the Equal Protection Clause of the 14th Amendment.

“It is irrational to allow humanists to solemnize marriage if, and only if, they falsely declare that they are a ‘religion,’” Judge Frank Easterbrook wrote for the court. “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.”

The 7th Circuit also noted if Indiana amends its statute to allow notaries to solemnize marriages, then the District Court should be receptive to a motion to modify the injunction.

Indiana Attorney General Greg Zoeller said he is evaluating options to appeal the 7th Circuit’s ruling.

Reiterating his office has a duty to defend state laws, Zoeller said “we contend the Legislature’s requirements for determining who can solemnize a marriage for the purpose of filing a marriage license at the county clerk’s office were reasonable and included alternatives for couples without involving clergy.”

The Attorney General characterized the ruling as narrow but raising an important question of state legislative authority.


 

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  • John
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  • Exhibit B
    This constitution from South Carolina, 1778, demonstrates just how much the Christian religion was front and center in the founding of our nation. This passage was not revised until after the war between the states. XXXVIII. That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges. But that previous to the establishment and incorporation of the respective societies of every denomination as aforesaid, and in order to entitle them thereto, each society so petitioning shall have agreed to and subscribed in a book the following five articles, without which no agreement fir union of men upon presence of religion shall entitle them to be incorporated and esteemed as a church of the established religion of this State: 1st. That there is one eternal God, and a future state of rewards and punishments. 2d. That God is publicly to be worshipped. 3d. That the Christian religion is the true religion 4th. That the holy scriptures of the Old and New Testaments are of divine inspiration, and are the rule of faith and practice. 5th. That it is lawful and the duty of every man being thereunto called by those that govern, to bear witness to the truth. http://teachingamericanhistory.org/bor/constitutions/south-carolina/
  • Exhibit A
    Exhibit A is our own Indiana constitution, Mr. Mudd. Not dedicated to Allah, or Brahma, or each person's individually chosen Higher Power (or lower poweress). No, study the language used for the Divine and find that it comes from the Book of Genesis. PreAmble: "TO THE END, that justice be established, public order maintained, and liberty perpetuated; WE, the People of the State of Indiana, grateful to ALMIGHTY GOD for the free exercise of the right to choose our own form of government, do ordain this Constitution." First five planks, star billing .....ARTICLE 1. Bill of Rights Section 1. Inherent rights Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the People; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the People have, at all times, an indefeasible right to alter and reform their government. (History: As Amended November 6, 1984). Section 2. Right to worship Section 2. All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences. (History: As Amended November 6, 1984). Section 3. Freedom of religious opinions Section 3. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience. Section 4. Freedom of religion Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent. (History: As Amended November 6, 1984). Section 5. No religious test for office Section 5. No religious test shall be required, as a qualification for any office of trust or profit.
  • We built this city
    The State Constitutions of those states that formed up the federal government reveal that Christians, not satanists, not materialists, not Moslems built this social order. The traditions were Western, not oriental. The Fathers of the Republic built off of the Fathers of the Faith. Knowingly so, even if the Fathers of the Republic were Enlightment devotees, they still realized that they built on the foundation of Christendom. Yet the federal governent, since the war between the states, has been hell bent on denying this Christian identity to the separate states. We now face secularism and agnosticism enforced by federal court decrees. Yet none dare call it apostacy? Well, we can at least call it modernity, a veriable revolution in our times. We are building a city, a city that supplants the Christian constitutional republics that once ruled this land.... in its far better days. Hail the New Caesar: https://www.youtube.com/watch?v=9kF5ulIel2k
  • Ramblings
    My, my... how one rambles incoherently about "cultural moorings" that appeal to few and not the many whose moorings are tied to many differing beliefs. The paranoia of "ALWAYS aimed against Christian traditions" makes one wonder which of the many thousands of traditions should become law. If someone wants to have commitments made via representation of the Church of the Flying Spaghetti Monster or no church whatsoever, what does it matter? Divorces, regardless of cultural moorings, will continue to pass through the courts, thus keeping legal employment at high levels. As for the Indiana State Legislature ignoring "all historical and social context of its citizens", they have done a fine job over the years of ignoring their constituents once elected. Incoherent ramblings. Amazing.
  • preposterous
    Does the Constitution require the Indiana state legislature to ignore all historical and social context of its citizens altogether? Yet another example of how our vaunted "Democracy" is just a matter of convenience for when the government itself wants to enlist people to go die for some phony war or pay up the taxes due. When the legislatures offend political correctness and its monied backers in the slightest bit, in rush the black robes to nullify the laws. Amazing.
  • against all common sense
    If Jeffersonian non-Establishmentarian dicta about the First Amendment can be extended this far, to this ridiculous extent that would have had even Jefferson in shock, then the bands which hold the republic together have lost their elasticity........contemporary American secularism is now showing its extremism and lack of cultural moorings and hence its gross absurdity to all, not just to religiously observant folk who can tell the difference between spit and rain..........the ultimate ideological issue has little to do with clerical structure nor even with theism. The issue is between materialism and religion as such, because, all these suits are brought by materialists. They object not to intolerance because they are the most intolerant persons to be found. NO they object to the idea of religious authority as such, they object to the idea of any non-observable, unmeasurable phenomena as having any legitimate impact on human life at all. It's also fairly obvious that they are in practice always ALWAYS aimed against Christian traditions, the more "conservative" the better, though occasionally there may be collateral damage on some of their own sources of guidance, support, and anti-Christian energy..... not that Christians can detect this since they are generally the biggest supporters of secularism as a way to manage the conflict created by their own schisms....in the end these kinds of decisions are pure nihilism, they are farce, they are Dada, they become something like disgusting government funded performance art mocking the American people and their sacred traditions in favor of the current regime of political correctness. The federal judges can't solve this problem and the US Constitution itself is not Holy Writ. The "people" such as they now are, a chaotic polyglot agglomeration of social atoms, has devolved and lost the spirit of ordered liberty and no papers will save them.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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