Judge Rules Against CFI in Secular Celebrant Lawsuit

Judge Rules Against CFI in Secular Celebrant Lawsuit December 4, 2012

A federal court has ruled against the Center for Inquiry in an Indiana case challenging that state’s restrictions on who can perform a wedding, a law that rules out humanist secular celebrants. Judge Sara Evans Barker, a Reagan appointee, upheld the law after applying the rational basis test. I don’t have a link to the ruling, as I’m reading it on Lexis/Nexis.

The Indiana state law, similar to many other states, only allows the following people to perform a legally binding wedding ceremony:

(1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.

(2) A judge.

(3) A mayor, within the mayor’s county.

(4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.

(5) A clerk of the circuit court.

(6) The Friends Church, in accordance with the rules of the Friends Church.

(7) The German Baptists, in accordance with the rules of their society.

(8) The Bahai faith, in accordance with the rules of the Bahai faith.

(9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.

(10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

And the ruling explains what solemnizing a marriage consists of:

The individual who “solemnizes” the marriage has three related responsibilities: (1) completing the original and duplicate marriage certificates; (2) presenting the original certificate to the couple; and (3) “[n]ot later than thirty (30) days after the date of the marriage,” filing the duplicate certificate and the actual marriage license with the clerk of the circuit court who issued the couple’s license.

CFI Indiana filed the suit. The judge’s ruling is really quite odd and, frankly, rather hostile. She sneers that the constitution does not require the state of Indiana to “perform heroics to fashion Plaintiffs’ ideal remedy,” as if that was anything at all like what is being pleaded for in this case. It hardly requires the state to “perform heroics” merely to certify secular celebrants to solemnize marriages, any more than the state was “performing heroics” by adding German Baptist ministers to the list of those who could do so.

In fact, the ruling seems to be a long series of straw man arguments. Like this one:

Plaintiffs would apparently like the Court to declare that the State of Indiana has no business accommodating longstanding religious practices through the Solemnization Statute. This we cannot do and shall not do.

No, that isn’t the argument being made. CFI is not arguing that the state can’t certify religious officials to solemnize marriages, they’re arguing that the state can’t certify only religious officials (or elected ones) to do so.

We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage. Additionally, the statute bears a rational relation to the equally reasonable purpose of allowing the government to assume responsibility for the marriage regulation function without ostracizing its religious constituents.

Again, this simply isn’t relevant. Adding secular celebrants to the list of those who can solemnize marriages does nothing to interfere with religious officials also doing so. Unless “without ostracizing its religious constituents” means that the state can refuse to do so merely because some religious people will be offended by the fact that secular celebrants can do the same thing they do. And that’s clearly wrong.

This whole ruling is garbage. I fully expect an appeal.

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What Are Your Thoughts?leave a comment
  • I wonder if this judge also believes that allowing gays to marry somehow prevents or taints the marriages of heterosexuals.


  • baal

    Well, unless a serious person* files the paper work, how will you know to take your marriage seriously?

    *Serious persons may only be clergy or certain named offices, void where prohibited, not valid in most other States, cash value of this assertion is .0001c in CA

  • Reginald Selkirk

    We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage.

    To me, that reads like a pretty explicit endorsement of pre-existing religions over new religions (or non-religions).

  • fastlane

    I agree with Reginald Selkirk. Based on these snippets, this will be overturned at the appeals court.

  • cottonnero

    Sounds like Indonesia, not Indiana.

    OK, it sounds like Indiana too.

  • jaxkayaker

    Move to strike the entire decision as nonresponsive.

  • “Move to strike the entire decision as nonresponsive.”

    Terri Schaivo’s ashes could have been more responsive. What an idiot.

  • John Hinkle

    It’d be a lot easier if the legality of the ceremony was separate from the ceremony itself. So, have a ceremony, and then do the paperwork. Or vice versa. Who cares. No problem.

  • otrame

    My brother was the celebrant for his son’s marriage in October. He had to take some kind of course, but he is licensed to perform weddings in Texas, even though he is even more rabidly atheist than I am.

    Which is saying something.

  • eric

    AIUI, the judge also complained that atheists were already acommodated because they could access 1 or 6. I.e., they could buy a religious degree online or join the friends church,which is very liberal in terms of entry requirements.

    That’s downright offensive, not only to atheists but to religious people. Imagine telling a baptist “you’re covered! Just go over to the synagogue and ask them to make you an honorary rabbi for a day.” And imagine the insult of telling a religious organization “the state has decided we don’t need to give atheists their own marriage celebrants, because you’re enough of a whore that you’ll do it for them.”

  • iknklast

    FSM has begun ordinations, and I understand several people have legally certified as Pastafarians. Of course, a state might still give you grief, because it’s not a “legitimate” traditional belief (but just think: marriages at Spaghetti Warehouse!)

    It seems this was created as a way around the rules that most states have that give preference to the religious, and it might work, but it shouldn’t have to be that way. The judge appears to have put her own personal preferences ahead of the secular constitution, which does not in any way declare that you have to be religious to perform marriages (doesn’t mention them at all, in fact)

  • rork

    Help please. Explain what “A member of the clergy of a religious organization” means, and why I can’t declare Bayesian statistician shroomexpert steelhead fishermen of Washtenaw County such an organization today, and myself it’s only member and clergyman tomorrow. Or does “clergy” actually mean something particular. Or does “religious organization” mean something particular in the law. I might be a bit pissed if they do.

    It does smack of elevating some belief systems above others.

  • DaveL

    All right, I’m no lawyer, but isn’t religion a suspect class? Don’t government distinctions based on religion automatically trigger a higher level of scrutiny than the “rational basis” test?

  • busterggi

    “(7) The German Baptists, in accordance with the rules of their society.”

    So a non-German Baptist minister, say a Frecn Baptist, can’t perform marriages in Indiana? Merde!

  • busterggi

    That’s French – Merde!!!

  • wscott

    It reads as if the Judge thinks the CFI suit was seeking to de-certify religious solemnitizers, rather than to certify non-religious ones. Assuming that’s not the case (I haven’t read the suit, but I can’t imagine CFI would be that stupid), I can only think of 3 possibilities:

    1. The Judge didn’t bother to read the suit before responding,

    2. The Judge has major reading comprehension problems, or

    3. The Judge let his own religious knee-jerkism completely overrule his legal brain.

    My money is on #3, but I can’t completely rule out the other possibilities. Either way, IANAL but this seems like a slam dunk on appeal.

  • dougmasson

    The decision is available here (pdf)

  • eric

    Explain what “A member of the clergy of a religious organization” means, and why I can’t declare Bayesian statistician shroomexpert steelhead fishermen of Washtenaw County such an organization today

    It means someone who went to some sort of divinity school. Even if the school is an online one where you can get a degree for $19.99 after answering deep theological questions like “Name” and “Shipping address.”

    Now, I have no idea what barriers there are to setting up your own school of secular humanism. Maybe they are very low. But IMO its still unconstitutional to require it because its still preferring “clergy of religious organizations” over nonclergy.

  • beergoggles

    @ #13, I am curious as to why the non-religious are suddenly subject to rational basis from this judge. There is scotus precedent that includes ‘non-religious’ as part of the ‘religious’ class.

  • “…why I can’t declare Bayesian statistician shroomexpert steelhead fishermen of Washtenaw County such an organization today, and myself it’s only member and clergyman tomorrow. ”

    Obviously because Bayesian statistician shroomexpert steelhead fishermen are a dime a dozen in Washtenaw County! Can’t swing a cat without hitting several dozen of them.

  • evilDoug

    Why does the state of Indiana not consider Quakers, German Baptists, Bahais, Mormons and Muslims to be of religious organizations? And what about German anabaptists? Huh?! What are Amish and Hutterites to do?

    And why does the clerk at the city impound lot get to perform weddings?

  • Ichthyic

    OT… is someone trying to add the new design to the FTB site?

    things are appearing and disappearing left and right.

  • bad Jim

    The judge defends the law because it doesn’t actually threaten various religious views of marriage. Huh?

    At least Indiana allows a secular ceremony conducted by a city or court clerk.

    In California, the officiant(s), once the necessary paperwork has been registered, merely need to fill out a form affirming that some unspecified act was carried out. One of my nieces was married in a ceremony conducted by a friend of hers which took less than three minutes. Another employed a mother-in-law and a couple of others a father-in-law, though the latter two wound up in divorce.

  • =8)-DX

    Either way, each (wo)man is h(er)is own (non)religion and taking sides is wrong. The whole mess here is the idea that marriage is a Christian and religious institution. Which it isn’t, it’s merely a co-opted version of natural human pair-bonding, subsidised and regulated by the state.

  • Jeff D

    I’m an atheist and a practicing lawyer here in Indiana with 33 years of experience, and although I don’t do civil rights litigation, I’m familiar enough with the principles and the precedents.

    I have had cases before Judge Barker . . . a very smart and experienced jurist, whatever we may think of her “convenient” reasoning in this case (In her private life and in light of the friends she keeps, she is fairly liberal).

    I’m sorry, but since Indiana is in the 7th Circuit, I think that this case is not a “slam-dunk” victory in an appeal. The 7th Circuit has shown Cirque-du-Soleil-level contortionist / gymnastic skill in finding ways to reverse lower-court victories in establishment clause / equal protection cases like this without reaching the merits, such as by finding that the plaintiffs lacked standing Check out Hinrichs v. Bosma, 506 F.3d 584, sometime), and I think there is much better than a 51-percent likelihood that a majority on a 7th-Circuit panel will find a way to affirm Judge Barker . . . such as by suggesting that the best solution is a legislative one, so the courts should stay out of it.

    The Indiana General Assembly has a Republican super-majority in both houses, and a fundagelical Christian conservative as the incoming Governor. This is a legislature and a Republican caucus that has wasted considerable time in past sessions trying to enact a Constitutional amendment to add a “one man and one woman” definition of marriage, even though that already exists in the state statutes.

    I have spent a fair amount of time talking with state legislators and testifying before committees in both Houses on other legislative matters. Although it would be very easy to draft an amendment to broaden the class of “solemnizers” or celebrants — or, better yet, to eliminate the requirement for a solemnizer or celebrant altogether — I think it’s quite unlikely that there will be any legislative reform, and forget about trying to get relief in the courts in this state. More’s the pity.

  • matty1

    I’ve said it before, the registration needed to access the legal benefits of marriage should be completely separate from how the couple choose to celebrate. The state has no business requiring that specific people be present or words are recited, just get written confirmation that they understand what they are getting into and accept the legal status of married and update the records accordingly.

    I could accept some requirement for the marriage to be witnessed by a neutral person as a way to tackle forced marriage but even then there are no grounds to give that role to clergy, and some not to. I think forced marriages tend to be done for religious reasons so the preacher may be the last person to stop things on the grounds of lack of consent.

  • “(In her private life and in light of the friends she keeps, she is fairly liberal).”

    This ruling is illiberal, so is she like a lot of other liberals, only liberal when her touchstone, religion, is left alone?

    You say the 7th Circuit won’t overturn it? So, how long before they’re petitioned by RELIGIOUS groups which she excluded from consideration in her ruling for a re-hearing? Or is that not possible?

  • wscott

    @ Jeff D: Bummer, but thanks for the insider view.

    Also: I missed that the Judge was a her not a him – my bad.

  • peterw

    Barker is not a judge who is particularly friendly to religion: she threw out the attempt to put the 10 commandments on the statehouse grounds, and then another attempt to put the same 10 commandment monument on a courthouse lawn.


    “Threatened by fines, residents of a small town in Indiana say they were forced to remove a monument displaying the Ten Commandments from the lawn of the local courthouse, after a federal judge ruled on behalf of the state’s civil liberties union.

    “We were ordered to take it down, we were given five days to take it down, or the county was going to be fined $1,000 every day it wasn’t taken down and each commissioner, $200 a day,” said Tim Terry, president of the Lawrence County Commission in Bedford, Ind.

    U.S. District Judge Sarah Evans Barker issued the ruling this month, basing it on arguments set forth in an earlier case involving the same monument at the statehouse building in Indianapolis.”

    I wish people wouldn’t be so quick to assume that because someone makes a decision you don’t like, they are acting in bad faith.

  • Michael Heath

    peterw writes:

    I wish people wouldn’t be so quick to assume that because someone makes a decision you don’t like, they are acting in bad faith.

    Ed provided three compelling reasons to criticize her conclusion. If you think a particular commenter presumed such I suggest blockquoting what they write and criticizing that.